Royal Assent

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	Dealing in Cultural Objects (Offences) Act,
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	Hereford Markets Act.

Extradition Bill

Lord Bassam of Brighton: My Lords, I beg to move that the Bill be now further considered on Report.
	Moved, That the Bill be further considered on Report.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.
	Clause 95 [Death penalty]:

Lord Goodhart: moved Amendment No. 235:
	Page 50, line 9, leave out subsection (3).

Lord Goodhart: My Lords, I can be brief in dealing with the amendment. I am glad to see that the Minister has attached her name in support, and so the Government accept it.
	The amendment relates to Clause 95, which states in subsection (1):
	"The Secretary of State must not order a person's extradition to a category 2 territory if he could be, will be or has been sentenced to death for the offence concerned in the category 2 territory".
	Subsection (3) states:
	"Subsection (1) does not apply if the person has consented to his extradition under section 127".
	Under Clause 127, consent, once given, is irrevocable. Without the amendment we would be faced with the possibility of extraditing someone to a jurisdiction in which the death penalty can be imposed even though that person has changed his mind and is unwilling to go to that territory. We do not believe that that situation ought to be allowed to happen.
	Of course it should, and will, remain possible for someone who is determined to go to stand trial in a country in which conviction of the offence will carry the death penalty to do so of their own free will. That is obviously a right that they should have. But, in a case of that kind, we believe that it should be their own decision up until the last minute when they board the aeroplane or whatever is taking them to the overseas territory in question. At no stage before then should there be any compulsion on them to accept extradition. I beg to move.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Goodhart, for tabling the amendment. It was supported on the previous occasion by my noble friend Lord Clinton-Davis, who suggested that this provision should be removed. We were so impressed with the argument on that occasion that I have put my name to the amendment. I am delighted that the noble Lord moved it with such eloquence.

On Question, amendment agreed to.
	Clause 96 [Speciality]:

Lord Bassam of Brighton: moved Amendment No. 236:
	Page 50, line 28, at end insert—
	"(d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence."

Lord Bassam of Brighton: My Lords, this is a minor drafting amendment which allows a person to waive speciality protection; that is, the right to be tried only for the offence for which he was extradited. The amendment will enable us to achieve a position equivalent to that in Part 1 of the Bill. I beg to move.

On Question, amendment agreed to.
	Clause 100 [Time limit for order for extradition or discharge]:

Baroness Scotland of Asthal: moved Amendments Nos. 237 and 238:
	Page 51, line 32, leave out subsection (2) and insert—
	"(2) If the person applies to the High Court to be discharged, the court must order his discharge."
	Page 51, line 35, leave out subsections (4) to (9).
	On Question, amendments agreed to.
	[Amendment No. 239 not moved.]
	Clause 101 [Information]:
	[Amendment No. 240 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 241:
	After Clause 102, insert the following new clause—
	"The appropriate day
	(1) This section applies for the purposes of sections 94 and 100 if the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited.
	(2) If the person is charged with an offence in the United Kingdom, the appropriate day is the day on which one of these occurs—
	(a) the charge is disposed of;
	(b) the charge is withdrawn;
	(c) proceedings in respect of the charge are discontinued;
	(d) an order is made for the charge to lie on the file, or in relation to Scotland, the diet is deserted pro loco et tempore.
	(3) If under section 98(3) or 99(2) the Secretary of State defers making a decision until the person has served a sentence, the appropriate day is the day on which the person finishes serving the sentence.
	(4) If section 126 applies in relation to the request for the person's extradition (the request concerned) the appropriate day is—
	(a) the day on which the Secretary of State makes an order under that section, if the order is for proceedings on the other request to be deferred;
	(b) the day on which an order under section 182 is made, if the order under section 126 is for proceedings on the request concerned to be deferred and the order under section 182 is for the proceedings to be resumed.
	(5) If section 181 applies in relation to the request for the person's extradition, the appropriate day is—
	(a) the day on which the Secretary of State makes an order under that section, if the order is for proceedings on the warrant to be deferred;
	(b) the day on which an order under section 182 is made, if the order under section 181 is for proceedings on the request to be deferred and the order under section 182 is for the proceedings to be resumed.
	(6) If more than one of subsections (2) to (5) applies, the appropriate day is the latest of the days found under the subsections which apply.
	(7) In any other case, the appropriate day is the day on which the judge sends the case to the Secretary of State for his decision whether the person is to be extradited."
	On Question, amendment agreed to.
	Clause 103 [Appeal where case sent to Secretary of State]:

Lord Bassam of Brighton: moved Amendment No. 242:
	Page 53, line 38, at end insert—
	"(7A) If notice of an appeal under section 110 against the decision which resulted in the order for the person's discharge is given in accordance with subsection (5) of that section—
	(a) subsections (6) and (7) do not apply;
	(b) no appeal may be brought under this section if the High Court has made its decision on the appeal."

Lord Bassam of Brighton: My Lords, in moving Amendment No. 242, I shall speak also to Amendment No. 243.
	I appreciate that, at first glance, it is not at all clear what the amendments seek to achieve. However, as I shall seek to demonstrate, their purpose is fairly simple. As your Lordships may be aware, the multiple avenues of appeal are one of the failings that bedevil our present extradition arrangements. There are, quite simply, too many opportunities to appeal and, as a result, too many unnecessary appeal hearings. That is why the Bill provides that there should be a single appeal hearing before the High Court.
	However, on very close examination we discovered that there might be a loophole. If in a Part 2 case the district judge sends the case to the Secretary of State, the person whose extradition is sought might want to appeal against that decision. If the Secretary of State then decides to throw out the case, the requesting state may wish to lodge an appeal. Both of these appeals would be to the High Court but, as the Bill is currently drafted, they could be heard at different times.
	That does not seem entirely sensible. We believe that it would be far better for the High Court to deal with both matters at the same time in order that all the factors relating to a person's case can be considered and taken together. That is what the amendments allow for, in particular by preventing the person waiting for the outcome of the requesting state's appeal before submitting their own appeal.
	I hope your Lordships will agree that this is a sensible rationalisation which will help all parties. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton: moved Amendment No. 243:
	Page 53, leave out line 42 and insert "or (4) of the order he has made in respect of the person"
	On Question, amendment agreed to.
	Clause 113 [Appeal to High Court: time limit for start of hearing]:

Baroness Scotland of Asthal: moved Amendments Nos. 244 to 246:
	Page 58, line 21, after "period" insert "(the relevant period)"
	Page 58, line 23, after fourth "the" insert "relevant"
	Page 58, line 23, at end insert—
	"(2A) The High Court may extend the relevant period if it believes it to be in the interests of justice to do so; and this subsection may apply more than once.
	(2B) The power in subsection (2A) may be exercised even after the end of the relevant period."
	On Question, amendments agreed to.
	Clause 119 [Undertaking in relation to person serving sentence in United Kingdom]:

Baroness Scotland of Asthal: moved Amendment No. 247:
	Page 62, leave out lines 28 and 29 and insert—
	"(5) Subsections (6) and (7) apply if the Secretary of State makes an order for extradition subject to a condition under subsection (2).
	(6) If the Secretary of State does not receive the undertaking before the end of the period of 21 days starting with the day on which he makes the order and the person applies to the High Court to be discharged, the court must order his discharge.
	(7) If the Secretary of State receives the undertaking before the end of that period—"
	On Question, amendment agreed to.
	Clause 121 [Position where asylum claimed]:

Baroness Scotland of Asthal: moved Amendments Nos. 248 to 250:
	Page 63, line 24, at end insert—
	"(za) when the Secretary of State makes his decision on the claim, if there is no right to appeal against the Secretary of State's decision on the claim;"
	Page 63, line 26, after "if" insert "there is such a right but"
	Page 63, line 39, leave out subsection (9).
	On Question, amendments agreed to.
	Clause 122 [Withdrawal of request before end of extradition hearing]:

Baroness Scotland of Asthal: moved Amendment No. 251:
	Page 64, line 14, at end insert "as soon as practicable"
	On Question, amendment agreed to.
	Clause 124 [Withdrawal of request while appeal to High Court pending]:

Baroness Scotland of Asthal: moved Amendment No. 252:
	Page 64, line 40, at end insert "as soon as practicable"
	On Question, amendment agreed to.
	Clause 125 [Withdrawal of request while appeal to House of Lords pending]:

Baroness Scotland of Asthal: moved Amendment No. 253:
	Page 65, line 21, at end insert "as soon as practicable"
	On Question, amendment agreed to.
	Clause 126 [Competing extradition requests]:

Lord Bassam of Brighton: moved Amendment No. 254:
	Page 65, line 39, after "account" insert "in particular"

Lord Bassam of Brighton: My Lords, these amendments have been brought forward in response to a point raised by the noble Lord, Lord Hodgson, in Grand Committee. They are concerned with the issue of competing requests, which is where we get two or more requests in respect of the same individual. I hasten to stress that competing requests are not at all common. Nevertheless, we need some means to determine which should receive priority.
	The Bill provides just such a mechanism in three different places to cope with the three possible scenarios—two competing Part 1 requests, two competing Part 2 requests and a competing Part 1 and Part 2 request. In each case, the Bill sets a list of factors which the person making the adjudication needs to take into account—the seriousness of the offence, the place where the offence was committed, the date of the request and whether it is an accusation case or a conviction case.
	I think it would be fair to say that we had an interesting discussion in Grand Committee about what should be on the list. I have no wish to go over that ground again since it is beyond the scope of these amendments. However, what did emerge was that the noble Lord, Lord Hodgson, was very concerned that the list should not be seen as exhaustive so that the person deciding between the competing requests could take into account any other relevant factors.
	We have looked at this again, we agree, and we have looked at the drafting of the Bill. Clause 43, which deals with competing Part 1 requests, provides that the judge making the decision must take into account, in particular, the matters in the list. That makes it crystal clear that he can also consider other matters. By contrast, the words "in particular" do not appear in Clause 126, which relates to competing Part 2 requests, and Clause 181, which deals with competing Part 1 and Part 2 requests. These amendments rectify that omission and I hope they find favour with the noble Lord, Lord Hodgson. I beg to move.

Lord Hodgson of Astley Abbotts: My Lords, I thank the Minister for his explanation. We had two concerns—that the wording between Clauses 43, 126 and 181 was not consistent, and that the precision of the wording might inhibit the powers of the Secretary of State. We are grateful to the noble Lord, Lord Filkin, for having followed up his agreement to have another look at this point. We are happy with the amendments.

On Question, amendment agreed to.
	Clause 127 [Consent to extradition: general]:

The Earl of Mar and Kellie: moved Amendment No. 255:
	Page 66, line 39, at end insert—
	"( ) In the application of this section to Scotland, "counsel" includes a solicitor who has the right of audience in the High Court of Justiciary under section 25(a) (right of audience in various courts in the High Court of Justiciary) of the Solicitors (Scotland) Act 1980 (c. 46)."

The Earl of Mar and Kellie: My Lords, Amendment No. 255 is, once again, inspired by the Law Society of Scotland. The amendment is relevant only in Scotland, and would be a useful and necessary clarification.
	I suspect that the comparatively recent development of the solicitor-advocate and the associated right of audience in the High Court of Justiciary may have been forgotten. The amendment would ensure that everyone understands that the definition of being legally represented before the appropriate judge extends to and includes solicitor-advocates. At present, the Bill makes no provision by which a solicitor could instruct a solicitor-advocate to represent his client. It is not clear whether a solicitor-advocate is acceptable within Clause 127(9).
	Solicitor-advocates came into being under the Solicitors (Scotland) Act 1980. In other legislation, it has been thought necessary to make express provision for solicitor-advocates—for example, in the Criminal Procedure (Scotland) Act 1995, as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 and in the Criminal Procedure (Amendment) (Scotland) Bill currently before the Scottish Parliament.
	This amendment seeks only to clarify and include, not to alter the Bill. I beg to move.

Baroness Carnegy of Lour: My Lords, I have added my name to the noble Earl's amendment. I moved a similar amendment in Committee and thought I was satisfied with the Minister's apparently confident response at that time until the Law Society of Scotland came back this week with new information that is hot off the press, as the noble Baroness, Lady Scotland, probably knows.
	It seems that the Scottish Executive has been following our Grand Committee proceedings. It has been convinced, as the Home Office has not so far been convinced, of the need in a similar context to make specific provision for solicitor-advocates. It has done it, as the noble Earl said, in a new Bill—the Criminal Procedure (Amendment) (Scotland) Bill which was introduced in the Scots Parliament just three weeks ago, on 7th October. The terms used in that Bill are similar to those in our amendment, which refers to the fact that "counsel" includes a solicitor with extended rights.
	It is good to think that this House's discussions have apparently assisted the Scottish Executive and the Scots Parliament. But now, for the clarity of Scots law across two Bills, should the Home Office perhaps follow it? I should add that the noble and learned Lord, Lord Cameron of Lochbroom, has written a letter which I have just received saying that had he been here, he would have supported this amendment. He feels that the clarity would be a good thing, although he appreciates the point which was brought out in Grand Committee that solicitors have extended rights in England and Wales too, and that there is no mention of that in the Bill. But from the point of view of Scotland, he thought this was a good amendment, so I support it.

Baroness Scotland of Asthal: My Lords, I hope that I shall be able to reassure the noble Earl and the noble Baroness that the amendment is not needed and that we have taken the change into consideration. Because the matter has caused a bit of confusion, I shall take a little time to explain why we believe that to be so, so that the Law Society of Scotland will be more content.
	I am grateful for the amendment, which relates to the important issue of consent to extradition and, more specifically, the legal advice that is available to a person in such circumstances, as the noble Earl said. I know that he is particularly concerned about how the provisions relate to Scotland. As the noble Baroness said, the matter was debated in Grand Committee.
	Under Part 2 of the Bill, the appropriate judge is able to accept the fugitive's consent to extradition only if the fugitive is legally represented before the judge, if the fugitive has refused or failed to apply for legal aid, or if any application was refused or legal aid withdrawn. In Clause 127(9), a person is defined as being legally represented if,
	"he has the assistance of counsel or a solicitor to represent him".
	The noble Earl's amendment would ensure that the definition of being legally represented extended in Scotland to being represented by a solicitor advocate. A solicitor-advocate is a solicitor who, under Section 25A of the Solicitors (Scotland) Act 1980, has rights of audience in the High Court of Justiciary, as well as in the District and Sheriff Courts. I am sympathetic to the motivation behind the amendment, which seeks to ensure that those who wish to consent to their extradition are given appropriate legal representation in order to understand the full implications of giving consent.
	Happily, I can reassure the noble Earl, Lord Mar and Kellie, and the noble Baroness, Lady Carnegy, that there is nothing to worry about. A solicitor-advocate who has extended rights of audience in the High Court is still a solicitor within the meaning of the provisions, despite the wider scope of his role. As a solicitor, he is therefore caught by the reference to "solicitor" in subsection (9) of Clause 127. In any event, a person consenting to his extradition in Scotland is required to do so before the Sheriff of Lothian and Borders. There is absolutely no question that a person would consent under Section 127 before the High Court of Justiciary. The issue of extended rights of audience is, therefore, irrelevant.
	I hope that I have reassured your Lordships that a solicitor in Scotland who has extended rights of audience would be entitled, as a solicitor, to represent a fugitive at the time of his giving consent to extradition before the Sheriff. I hope that with that even the Law Society of Scotland will be content.

Baroness Carnegy of Lour: My Lords, the Minister has not answered the new point that I made. The Scottish Executive has stated in the new Criminal Procedure (Amendment) Bill that the term "counsel" includes a solicitor with extended rights. Would it not be desirable for the two Acts, which will come into law at a similar time, one in Westminster and one in the Scots Parliament, to match?

Baroness Scotland of Asthal: My Lords, the Scottish Parliament or Executive have decided to make it clear in their Bill that "counsel" includes a solicitor with extended rights because there is a difference between counsel and a solicitor. The extended rights of audience allow solicitors to have rights that they did not have hitherto. Our legislation encompasses both counsel and/or solicitor, so the two terms—solicitor and counsel—are already there. That is why we do not need it in this Bill, although I understand why the clarification may have been thought necessary in the other legislation, which previously referred only to counsel and not to solicitor. I hope that I have been sufficiently clear.

The Earl of Mar and Kellie: My Lords, I am grateful to the Minister for her extended answer and to the noble Baroness, Lady Carnegy of Lour, for having rather hotter information than me.
	I tabled the amendment to seek clarity, which I think I have got from the Minister, provided that this type of activity does not spill over into the High Court of Justiciary on some sort of appeal. At this point, I shall rely on the Minister's insistence that that is all implicit. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 129 [Consent to other offence being dealt with]:

Baroness Scotland of Asthal: moved Amendments Nos. 256 to 260:
	Page 67, line 16, leave out "category 2"
	Page 67, line 19, leave out "category 2"
	Page 67, line 21, at end insert—
	"(2A) The Secretary of State must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so."
	Page 67, line 25, at end insert—
	"(4A) If the Secretary of State decides that question in the affirmative he must decide whether the appropriate judge would send the case to him (for his decision whether the person was to be extradited) under sections 80 to 92 if—
	(a) the person were in the United Kingdom, and
	(b) the judge were required to proceed under section 80 in respect of the offence for which the Secretary of State's consent is requested.
	(4B) If the Secretary of State decides the question in subsection (4A) in the negative he must refuse his consent."
	Page 67, line 28, at end insert ", 96 or 97"
	On Question, amendments agreed to.
	Clause 130 [Consent to further extradition to category 2 territory]:

Baroness Scotland of Asthal: moved Amendments Nos. 261 to 265:
	Page 67, line 35, after "territory" insert "(the requesting territory)"
	Page 67, line 41, leave out "category 2 territory referred to in subsection (1)(a)" and insert "requesting territory"
	Page 68, line 2, at end insert—
	"(2A) The Secretary of State must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so."
	Page 68, line 6, at end insert—
	"(4A) If the Secretary of State decides that question in the affirmative he must decide whether the appropriate judge would send the case to him (for his decision whether the person was to be extradited) under sections 80 to 92 if—
	(a) the person were in the United Kingdom, and
	(b) the judge were required to proceed under section 80 in respect of the offence for which the Secretary of State's consent is requested.
	(4B) If the Secretary of State decides the question in subsection (4A) in the negative he must refuse his consent."
	Page 68, line 9, at end insert ", 96 or 97"
	On Question, amendments agreed to.
	Clause 131 [Consent to further extradition to category 1 territory]:

Baroness Scotland of Asthal: moved Amendments Nos. 266 to 268:
	Page 68, line 16, after "territory" insert "(the requesting territory)"
	Page 68, line 22, leave out "category 2" and insert "requesting"
	Page 68, line 24, at end insert—
	"(2A) The Secretary of State must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so."
	On Question, amendments agreed to.
	Clause 132 [Return of person to serve remainder of sentence]:
	[Amendment No. 268A not moved.]

Baroness Scotland of Asthal: moved Amendment No. 269:
	Page 69, line 6, at end insert—
	"(5) But subsection (4) does not apply if—
	(a) the person was extradited for the purpose of being prosecuted for an offence, and
	(b) the person has not been convicted of the offence or of any other offence in respect of which he was permitted to be dealt with in the category 2 territory.
	(6) In a case falling within subsection (5), time during which the person was not in the United Kingdom as a result of his extradition counts as time served by him as part of his sentence only if it was spent in custody in connection with the offence or any other offence in respect of which he was permitted to be dealt with in the territory."
	On Question, amendment agreed to.
	Clause 136 [Documents sent by facsimile]:

Baroness Scotland of Asthal: moved Amendment No. 270:
	Leave out Clause 136.
	On Question, amendment agreed to.
	Clause 137 [Receivable documents]:

Baroness Scotland of Asthal: moved Amendment No. 271:
	Leave out Clause 137.
	On Question, amendment agreed to.
	Clause 138 [Persons serving sentences outside territory where convicted]:

Baroness Scotland of Asthal: moved Amendment No. 272:
	Page 72, line 12, leave out from "section" to "after" and insert "86(5) has effect as if"
	On Question, amendment agreed to.
	Clause 140 [Extradition offences: person sentenced for offence]:

Baroness Scotland of Asthal: moved Amendment No. 273:
	Page 74, line 44, leave out paragraph (b) and insert—
	"(b) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 2 territory in respect of the conduct;"
	On Question, amendment agreed to.
	Clause 144 [Issue of Part 3 warrant]:

Baroness Scotland of Asthal: moved Amendment No. 274:
	Page 77, line 10, leave out subsection (8).
	On Question, amendment agreed to.
	Clause 148 [Dealing with person for other offences]:

Baroness Scotland of Asthal: moved Amendment No. 275:
	Page 79, line 14, leave out paragraph (d).
	On Question, amendment agreed to.
	Clause 154 [Remission of punishment for other offences]:

Baroness Scotland of Asthal: moved Amendment No. 276:
	Page 82, line 26, after "from" insert "—
	(i) a category 1 territory under law of the territory corresponding to Part 1 of this Act, or
	(ii) "

Baroness Scotland of Asthal: My Lords, the amendment makes a minor correction to the Bill. Clause 154 covers a situation in which a person has an outstanding UK sentence but is extradited for a different offence. By virtue of the role of speciality, we can punish the person only for the offence for which he was extradited.
	An example may help to illustrate what I am saying. Let us say that a person is serving a three-month prison sentence in the UK for theft. He escapes from prison and, in the course of doing so, murders a prison officer. He flees to Canada, and we seek his extradition in respect of the murder, which is clearly the most serious crime that he has committed. When we get him back we cannot seek to punish him for theft or enforce the outstanding prison sentence, because that was not the crime for which he was extradited.
	Clause 154 provides that in such a situation the punishment must be treated as remitted, but for all other purposes—for example, in criminal records—it must be treated as a conviction. However, the clause applies only in cases in which the person has been extradited to the UK from a category 2 country. Clearly the situation could equally well arise in cases involving extradition from a Part 1 country. The amendment simply amends the clause so that it applies whichever country the person was extradited from. I am sure that your Lordships see the sense of that. I beg to move.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the Minister for that information. Clearly, to treat category 1 and 2 countries differently would be illogical and we are content with the amendment.

On Question, amendment agreed to.
	Clause 155 [Return of person acquitted or not tried]:

Baroness Scotland of Asthal: moved Amendment No. 277:
	Page 83, line 5, after "that" insert—
	"(a)"

Baroness Scotland of Asthal: My Lords, in speaking to the amendment, I shall speak also to Amendments Nos. 278 to 282. The purpose of these amendments is simple. Clause 155 of the Bill is very similar to Section 20 of the Extradition Act 1989. It provides that if a person is extradited to the United Kingdom and then acquitted or not put on trial, he is entitled to be returned to the country from which he was extradited at public expense. These amendments provides that a person who wants to have his return travel paid must apply within three months of becoming eligible. This is designed to prevent the situation where a person who has been extradited to the UK and then acquitted decides to spend many months visiting friends and family in the UK before applying for his publicly funded trip back to his country of origin. A three-month period in which to apply seems perfectly reasonable. I hope that it will find favour with your Lordships. I beg to move.

Lord Hodgson of Astley Abbotts: My Lords, I understand the purpose behind the amendments. If I may, however, I should like to ask a couple of questions on how it will work. In her remarks a moment ago the Minister talked about "becoming eligible". The Bill refers to a "required period" of six months following which there is a three-month window of opportunity to make a claim. Is that required six-month period fixed? For example, if the Secretary of State were to decide after one month not to proceed and the person was on bail at that point, would the three-month clock start ticking at that point or would it start at the end of the six-month period? If it is the former, would the Secretary of State have a duty to notify the person that the three-month clock had started ticking and that he had 90 days or whatever in which to make an application before losing eligibility? We are not disagreeing with the principle of the provision. We simply wonder how in practice the person will be kept informed that his opportunity for fare repayment is gradually slipping away.

Baroness Scotland of Asthal: My Lords, if I may, I shall give the noble Lord my understanding of how the provision will work. If my remarks are in any way inaccurate I am sure that I can write to him and clarify the position.
	Your Lordships will know that all those who will be in this position will be legally represented. Time will start to run as soon as the proceedings come to an end and the defendant is told, "We are no longer proceeding with these proceedings. You are in effect free to go". In accordance with good practice, not only should the lawyers representing the defendant be able to apprise him of that fact, but there will, I am sure, be guidance on these matters. I should expect that the person will be told, "You now have three months to apply for your ticket to return". That is how I think it will work. If any of that is incorrect, I shall certainly write to the noble Lord and clarify the position.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 278 to 282:
	Page 83, line 7, at end insert ", and
	(b) before the end of the period of 3 months starting immediately after the end of the required period the person asks the Secretary of State to return him to the territory from which he was extradited."
	Page 83, line 8, after "that" insert—
	"(a)"
	Page 83, line 9, leave out "these provisions" and insert "the provisions specified in subsection (3A), and
	(b) before the end of the period of 3 months starting immediately after the date of his acquittal or discharge the person asks the Secretary of State to return him to the territory from which he was extradited.
	(3A) The provisions are"
	Page 83, line 16, leave out ", if asked to do so by the person,"
	Page 83, line 20, leave out "subsection (4) applies" and insert "subsections (2)(b), (3)(b) and (4) apply"
	On Question, amendments agreed to.
	Clause 158 [Search and seizure warrants]:

Lord Bassam of Brighton: moved Amendment No. 283:
	Page 84, line 14, at end insert—
	"(d) that material, or material of that description, is believed to be on the premises."

Lord Bassam of Brighton: My Lords, I am pleased to be able to bring forward this amendment which responds directly to a point raised by the noble Baroness, Lady Anelay, in Grand Committee.
	Clause 158 is concerned with search and seizure warrants and subsection (2) is concerned with what an application for such a warrant needs to contain. It provides that such an application for a search and seizure warrant must state the premises that it is proposed should be searched and the material that it is hoped to find. I think that it was already implicit that the material in question had to be located on the premises in question. Any other interpretation would have been perverse in the extreme. Nevertheless, the noble Baroness asked us to make it absolutely explicit on the face of the Bill and we are happy to accommodate that sensible suggestion.
	Accordingly, this amendment provides that any application for a search and seizure warrant has to state that the material in question is believed to be located at the premises in question. I trust that the noble Baroness will welcome it. I am sure that your Lordships will welcome it generally. I beg to move.

Baroness Anelay of St Johns: My Lords, indeed I do welcome this, as the noble Lord has said. It is important that it is explicit in the Bill that, before a search is carried out, there is at least some kind of belief that the items searched for might be on the premises. It is a common or garden matter that, before signing a search warrant in an ordinary case, magistrates ask whether the police believe that the items are on the premises. It is a matter of good practice that the Government have agreed to make the matter explicit in the Bill. I am pleased to see that.

On Question, amendment agreed to.
	Clause 161 [Computer information]:

Baroness Anelay of St Johns: moved Amendment No. 284:
	Page 87, line 9, after "visible" insert "comprehensible"

Baroness Anelay of St Johns: My Lords, in moving this amendment I shall speak also to Amendment No. 285. These amendments return to what might be considered a rather arcane point which I raised in our debate in Grand Committee on the matter of computer information. While we were probing the details of that clause, I asked questions about the definition of "visible" and "legible" with regard to the production of information on a computer for a constable to take away. At the time I was really just trying to establish whether information would have to be printed out or whether a CD-ROM, floppy disk or whatever would be considered sufficient. The Minister's answer to that question spurred me on to table this amendment. The noble Lord, Lord Filkin, who was then answering on these matters, said that the information would be either,
	"printed out in comprehensible form for the constable to take away or it could be provided on a CD-ROM disk which could be taken away for analysis, and so forth".—[Official Report, 10/7/03; col. GC 152.]
	As I remarked at the time, it was the use of the word "comprehensible" that I found intriguing. I appreciate that that may just have been a natural, human, honest response, as we always expect from the noble Lord, Lord Filkin. However, I thought that it was also an important matter. These are complex issues. Just what format will the information be in? "Comprehensible"—is that the case? If so, "comprehensible" to whom? I have tabled these amendments essentially to give the Government an opportunity to elaborate on what may have been just a slip of the tongue of the noble Lord, Lord Filkin, on that occasion. I beg to move.

Lord Clinton-Davis: My Lords, I rise rather reluctantly because I am always rather reluctant as far as the noble Baroness is concerned. However, I do not think that the word "comprehensible" should be included in the statute. The words "visible" and "legible" are perfectly readily understood. However, the word "comprehensible" could mean everything and anything to the person concerned. I think that it is completely different from the words "visible" and "legible" which have been quoted. For the most part, people will be advised by a competent person. I think that the word "comprehensible" does not add greatly to what is already said. As I have already intimated, I think that we should be very wary of introducing words into the statute that may have a variable meaning. Although the word "comprehensible" is understood by Members here, I do not think that it should be included in the Bill. However, advisers will readily understand what is being produced. I think that that is all that matters.

Lord Bassam of Brighton: My Lords, I am most grateful to the noble Baroness, Lady Anelay, for explaining her amendment again. I shall have to thank my noble friend Lord Filkin for inspiring her to table it.
	As the noble Baroness said, the amendment provides us with the opportunity further to spell out what we mean. I hope that I can be brief but also demonstrate that there is not a great division of principle between us.
	Let me start at the beginning. Part 4 of the Bill is concerned with the powers available to the police in extradition cases. For the first time this is being set out unequivocally in statute and I trust that all of your Lordships will welcome that.
	The Bill confers powers of search and seizure on the authority of a UK magistrate if there is believed to be material which is relevant to the offence in respect of which extradition has been sought.
	In certain circumstances a circuit judge may make a production order requiring a person to hand over certain specified material which is either special procedure material—that is to say, journalistic material or held in an official or professional capacity—or excluded material, which covers items such as personal records held in confidence. Clause 161 of the Bill concerns such material that may be held on a computer, as the noble Baroness said, or otherwise stored in electronic form. It provides that the person who is required to hand over the computer information does so in "visible and legible" form.
	I am sure that your Lordships will appreciate why this is necessary. It would clearly be pointless for the judge to order a person to hand over computer information if it was encrypted and could not be read by anyone other than its originator. This amendment seeks to insert an additional condition—that the information in question must be "comprehensible". Clearly, there can be no great objection to that suggestion, which I am sure, knowing the noble Baroness, has been designed to be helpful. At the same time I query whether it is necessary. The phrase "visible and legible" is an exact replica of what is found in Section 20 of the Police and Criminal Evidence Act 1984. By the same token, exactly the same words are found in paragraph 7.6 of Code B made under PACE.
	The Government, like the Opposition, want our legislation to be effective and clearly if there are problems with the wording of PACE, we should not be afraid to depart from it. However, in regard to this matter, I can advise your Lordships' House that there have been no problems. The words "visible and legible" have been clearly understood by all concerned. As the noble Lord, Lord Clinton-Davis, said, they are well understood. We are not aware of any cases where information has been provided in an incomprehensible form. That being so, while I am grateful for the sentiments which lay behind the tabling of the amendments, I do not believe that there is any need to depart from a well established, tried, trusted and successful formula.
	I fancy that what provoked the amendment was my noble friend Lord Filkin trying to elaborate on the explanation that was provided when the debate was originally stimulated by the noble Baroness. I would guess that he was trying to elucidate further. I hope that the noble Baroness will now feel comforted and able to withdraw the amendment.

Baroness Anelay of St Johns: My Lords, the noble Lord is right to say that there is no division between us on these matters. I agree with the noble Lord, Lord Clinton-Davis, about the difficulties regarding the word "comprehensible". It is not one that I would have considered putting on the face of the Bill. As I mentioned in my opening remarks, it was tabled only because I thought that the noble Lord, Lord Filkin, had added an important new aspect to the debate regarding the format in which the information would be provided.
	The noble Lord, Lord Bassam, is right to say that the words "visible and legible" have been carried on from previous legislation. I was trying to point out that sometimes one has to consider social changes in attitudes towards people who practise particular professions. Some while ago people with sight limitations may not have acted as solicitors, barristers, court clerks or magistrates. Nowadays, as discrimination is declining, although, sadly, it still exists, professions are more open to such people.
	I still have a slight reservation that the material should be both "visible and legible". I was trying to broadcast more widely the fact that "visible" does not necessarily refer to the printed word. There are ways in which computer information can be presented so that it is accessible to those with sight limitations. One is not just asking for material to be produced in Braille as that is not read by all with sight difficulties.
	I am grateful for the noble Lord's response but I thought that it was important to revisit the matter today so that it is more widely known that this information will be clearly available. I agree with the noble Lord, Lord Clinton-Davis, that the word "comprehensible" would cause more problems than it is worth. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 285 not moved.]
	Clause 166 [Entry and search of premises after arrest]:

The Earl of Mar and Kellie: moved Amendment No. 285A:
	Page 91, line 42, leave out "Subsections (9) and" and insert "Subsection"

The Earl of Mar and Kellie: My Lords, Amendments Nos. 285A and 285B deal with the Scottish context for search. The police must operate under the direction of the Crown Office and Procurator Fiscal Service but the Bill is silent about this supervision in Clause 166(11). By contrast, in England and Wales the Bill gives a degree of supervision in Clause 166. Written authorisation for search must be given by an inspector or more senior rank.
	In Grand Committee the Minister said, first, that the Crown Office and Procurator Fiscal Service would have a supervisory role in all aspects of extradition law in Scotland and, secondly, that a warrant for arrest would be executed only on an instruction from the Crown Office. As drafted, the Bill provides for the entry and search of premises as part of the arrest warrant. No reference is made to the police acting under further instruction from the Crown Office. It is not clear whether the arrest power will include the power of search. In order to control searches, I believe that the arrest warrant should contain specific provision for powers of search. The Crown Office would, therefore, be considering both arrest and search and instructing both. As a result, similar provision would be made for Scotland as is made for England and Wales. Extradition procedure in Scotland would be clearer. Do the Government not want that? I beg to move.

Baroness Carnegy of Lour: My Lords, this is an interesting point. I understand that when a policeman enters and searches premises in Scotland it will probably be a local policeman accompanied by a Lothian and Borders policeman. It would cause a bit of a stir if this happened, particularly in some of the remoter parts of Scotland. It will be very important indeed that it is absolutely clear that those policemen are entitled in law to do so. The idea that the warrant might contain the permission to enter and search—if that is likely to be necessary—is a helpful one because a policeman could show the warrant to prove he had permission. It will be interesting to hear the Minister's reply.

Baroness Scotland of Asthal: My Lords, of course I understand the concern raised by the noble Earl, Lord Mar and Kellie. I hope that I shall be able to explain why these provisions fit ill within the Scottish context. Both the noble Earl and the noble Baroness know well that Scots criminal law differs significantly from our own.
	We do not believe that a Scottish code of practice is necessary. I shall try to explain why Scotland is currently excluded from the scope of Clause 175.

Baroness Carnegy of Lour: My Lords, we are not debating the amendment about a code of practice. That is the next group.

Baroness Scotland of Asthal: My Lords, I am grateful for that indication and apologise. The amendments merge together, as do ones that we dealt with earlier. The first two points are still correct, because Scottish criminal law makes these amendments unnecessary. I shall explain why.
	As noble Lords are aware, Clause 166—I think that that is the clause about which we are speaking—gives police officers in England and Wales the power to enter and search premises after a person has been arrested. However, subsection (9) provides that those powers may be exercised only if a police officer of the rank of inspector or above has given authorisation in writing. As the Bill is drafted, that requirement does not apply to Scotland. The amendments seek to alter that position. However, they would introduce an unnecessary layer of supervision into the operation of entry and search-and-seizure in Scotland.
	In Scotland, all cases where the powers to search are exercised are exercised by Scottish police officers under the guidance of the procurator fiscal and/or the Crown Office. No search can take place without their instruction. That is the procedure that now prevails in Scotland, and it will apply in extradition cases, too.
	Let us imagine, for example, that a person is arrested under Part 1 as the result of a PNC check, and that a search of premises needs to be conducted without delay after arrest. In such cases, the first step which an officer in Scotland must take is to contact the Crown Office to obtain instructions about further action. Those instructions will relate not only to arrangements for bringing the person before the court, but to the search of any premises. The Crown Office also has responsibility for supervising all aspects of extradition law and will necessarily be involved in all extradition cases.
	The amendment would require the procurator fiscal, on learning of the arrest and proposed search from the Crown Office, to apply to a sheriff for written authorisation for a constable to enter and search the premises after arrest. That adds an additional procedure which is unnecessary and not in keeping with normal procedure in Scottish criminal law.
	I hope that, by that example, I have demonstrated that in Scotland the operation of police powers of entry and search-and-seizure are governed by judicial safeguards. The practice in England and Wales of obtaining authorisation from a more senior officer in such circumstances is essentially a PACE convention. We do not believe that it would be appropriate to import it into Scottish practice, where the current safeguards are robust and the practices well established. On that basis, I respectfully invite the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie: My Lords, once again I am grateful to the Minister for detailing the procedures in the Scottish jurisdiction and for the praise offered to that institution—a pre-Union institution, I remind noble Lords. I also thank the noble Baroness, Lady Carnegy of Lour, for her support. As someone who used to work in the criminal justice and social work arena in Scotland, I know that making certain that there were no unlawful fishing trips by search was always important on the ground. The Law Society of Scotland, in particular, will be interested to read the Minister's answers so that it, too, can understand why the amendment is not necessary. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 285B not moved.]

The Earl of Mar and Kellie: moved Amendment No. 285C:
	After Clause 175, insert the following new clause—
	"CODE OF PRACTICE IN SCOTLAND
	(1) The Scottish Ministers must issue codes of practice in connection with—
	(a) the exercise of the powers conferred by this Part;
	(b) the retention, use and return of anything seized or produced under this Part; and
	(c) access to and the taking of photographs and copies of anything so seized or produced.
	(2) If the Scottish Ministers propose to issue a code of practice under this section, they must—
	(a) publish a draft of the code;
	(b) consider any representations made to them about the draft; or
	(c) if they think it appropriate, modify the draft in light of any such representations.
	(3) The Scottish Ministers must lay the code before the Scottish Parliament, and when they have done so they may bring the Code into operation by order.
	(4) The Scottish Ministers may revise the whole or any part of a code issued under this section and issue the code as revised; and subsections (2) and (4) apply to such a revised code as they apply to the original code.
	(5) A code issued under this section is admissible in evidence in proceeding under this Act and must be taken into account by a judge or court in determining any question to which it appears to the judge or the court to be relevant.
	(6) The power conferred by subsection (3) above on the Scottish Ministers to make orders shall be exercisable by statutory instrument.
	(7) A statutory instrument containing an order under subsection (3) above shall not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament."

The Earl of Mar and Kellie: My Lords, the amendment deals with whether Scottish Ministers should be required to issue a code of practice for extradition in Scotland. That would give general guidance to practice and run in parallel with the specific instructions of the Crown Office and, of course, the Lord Advocate. The code of practice and the specific instructions would have a similar relationship to that of the Highway Code and the Road Traffic Act. The process would be similar to Section 24 of the Regulation of Investigatory Powers (Scotland) Act 2000 and to the Police Act 1997. The code of practice would provide an accessible reference point. The Lord Advocate would find it useful and beneficial if he were required to use it. I beg to move.

Baroness Carnegy of Lour: My Lords, this is, again, a matter that I raised in Grand Committee. At that time, the noble Lord, Lord Filkin, replied that it was for the Scots to decide whether they required a code of practice in this context. He argued that it would be inappropriate to provide for a code in the Bill, because in Scotland the police operate under the Crown Office, not under Scottish Ministers and, in any case, only one Scottish police force would be involved.
	As the noble Earl said, the Law Society of Scotland continued to query that. It has pointed out that there is a requirement in the Regulation of Investigatory Powers (Scotland) Act 2000 for Scottish Ministers to issue a code of conduct for anyone undertaking surveillance. It suggests that police behaviour is a matter for Ministers, whereas the operation is a matter for the Crown Office.
	I have received a contrary argument, which may support the argument that the noble Baroness is about to deploy on behalf of the Government. The noble and learned Lord, Lord Cameron of Lochbroom, who was of course a distinguished Lord Advocate and judge in Scotland, points out that in a later clause the Bill makes the Lord Advocate responsible for immigration cases. He can give directions to those in his own department—the Crown Office—both generally and specifically. He also has statutory powers in the Police (Scotland) Act 1967 and can give directions to the police, at least so far as a prosecution of crime is concerned.
	As a previous Lord Advocate, the noble and learned Lord tells me that he feels that the Lord Advocate would prefer to be in control of police activity on the matter. He is a Minister, so Scottish Ministers could include the Lord Advocate, but if further clarity were required it might be preferable that the matter be dealt with in the clause defining the power of the Lord Advocate rather than in this context. Therefore, although I have put my name to the amendment, I am now a little less full-hearted about it.

Lord Bassam of Brighton: My Lords, I believe that much of the ground relating to this issue was covered in the previous debate. I am persuaded by the noble Baroness's argument—indeed, it reflects the argument that we laid out previously. However, it is perhaps worth saying a few words on the matter.
	The amendment would try to transport into the Scottish system codes of practice which are more familiar to us within PACE. That is the essence of what the noble Earl, Lord Mar and Kellie, seeks to achieve. As we made plain previously, we do not believe that Scottish codes of practice are necessary and I shall try to explain why.
	First, I believe that the tradition in Scotland is that codes of practice are rarely issued in relation to criminal matters or proceedings. The police in Scotland look to the Criminal Procedure (Scotland) Act 1995 to provide them with the basic procedural rules and framework within which they carry out their normal procedures of searching and fingerprinting and the usual mechanics of gathering evidence.
	Secondly, as my noble friend Lady Scotland explained earlier, all police powers in Scotland, including those contained in Part 4 of the Bill, are exercised under the direction of the Crown Office and Procurator Fiscal Service. Section 17(3) of the Police (Scotland) Act 1967 makes it clear that police officers must comply with the lawful instructions of the procurator fiscal in the investigation of crime. Indeed, it is the procurator fiscal who must apply to the sheriff for a warrant to search under Clause 158 and who is responsible for the decision to deliver up evidence seized to the requesting state.
	Also, by virtue of Section 17 of the Police (Scotland) Act 1967, in directing the constables of a police force in relation to the investigation of offences, the chief constable of any area must comply with the lawful instructions of the procurator fiscal, who is effectively the local representative of the Lord Advocate. Those instructions can be very specific and reflect the fact that the procurator fiscal has responsibility at local level to direct all stages of the police in the investigation of crime.
	We believe that a code of practice issued by Scottish Ministers to the police in relation to the investigation of substantive crime could be seen as interference in the role of the Lord Advocate. We consider that to be an unnecessary interference with Scots criminal law. Therefore, we see no reason to differ from what I believe can be safely described as existing, accepted, trusted and well tried ways of working and, more importantly, of safeguarding the operation of police powers and procedures in Scotland.
	Therefore, we believe that this is an unnecessary amendment and that it would unnecessarily complicate matters in a situation where there is already clarity and understanding in relation to the way in which police operations are guided.

Baroness Carnegy of Lour: My Lords, before the noble Lord sits down and with the leave of the House, does he accept, despite his reply, that the Lord Advocate is a Member of the Scots Parliament and a Minister? Therefore, the distinction is not as clear as it might be in these matters.

Lord Bassam of Brighton: My Lords, I am at one with the noble Baroness in her understanding of the situation. I quite agree.

The Earl of Mar and Kellie: My Lords, I am glad that the noble Lord is coming round to accepting that the Lord Advocate is a Scottish Minister. I thank the noble Baroness, Lady Carnegy of Lour, for her two-handed support—it feels neutral from where I am standing. Can the Minister clarify that nothing in the Bill would prevent the Lord Advocate or Scottish Ministers issuing a code of practice if they wished to do so? I am not certain what indications I am receiving from the noble Lord.

Lord Bassam of Brighton: My Lords, it is the case that the Criminal Procedure (Scotland) Act 1995 provides the Lord Advocate with the power to issue instructions to chief constables. That, in itself, is a form of guidance and I believe that it provides the procedural and constitutional safeguards which I suspect the noble Earl seeks to put on to the face of the Bill.

The Earl of Mar and Kellie: My Lords, I am grateful for that clarification and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 181 [Competing claims to extradition]:

Baroness Scotland of Asthal: moved Amendment No. 286:
	Page 100, line 14, after "account" insert "in particular"
	On Question, amendment agreed to.
	Clause 182 [Proceedings on deferred warrant or request]:

Baroness Scotland of Asthal: moved Amendments Nos. 287 and 288:
	Page 100, line 33, at end insert—
	"(1A) The judge may make an order for proceedings on the deferred claim to be resumed.
	(1B) No order under subsection (1A) may be made after the end of the required period."
	Page 100, line 36, leave out subsection (3) and insert—
	"(3) If the person applies to the appropriate judge to be discharged, the judge must order his discharge if—
	(a) the required period has ended, and
	(b) the judge has not made an order under subsection (1A) or ordered the person's discharge."
	On Question, amendments agreed to.
	Clause 183 [Proceedings where extradition deferred]:

Baroness Scotland of Asthal: moved Amendments Nos. 289 and 290:
	Page 101, line 9, at end insert—
	"(1A) The judge may make an order for the person's extradition in pursuance of the deferred claim to cease to be deferred.
	(1B) No order under subsection (1A) may be made after the end of the required period."
	Page 101, line 12, leave out subsection (3) and insert—
	"(3) If the person applies to the appropriate judge to be discharged, the judge must order his discharge if—
	(a) the required period has ended, and
	(b) the judge has not made an order under subsection (1A) or ordered the person's discharge."
	On Question, amendments agreed to.
	Clause 188 [Asylum appeal to High Court where extradition ordered]:
	[Amendments Nos. 290A and 290B not moved.]

Baroness Scotland of Asthal: moved Amendment No. 291:
	Leave out Clause 188.
	On Question, amendment agreed to.
	Clause 189 [Asylum appeal to House of Lords where extradition ordered]:
	[Amendments Nos. 291A to 291G not moved.]

Baroness Scotland of Asthal: moved Amendment No. 292:
	Leave out Clause 189.
	On Question, amendment agreed to.
	Clause 194 [Crown Prosecution Service: role in extradition proceedings]:

Baroness Scotland of Asthal: moved Amendment No. 293:
	Page 107, line 29, leave out from "Director)" to "give" in line 32 and insert—
	"in subsection (2) after paragraph (e) insert—
	"(ea) to have the conduct of any extradition proceedings;
	(eb) to"

Baroness Scotland of Asthal: My Lords, as noble Lords will know by now, extradition involves various legal proceedings. The fugitive is invariably legally represented, which means that the other side—the requesting state—also needs to be legally represented. The normal practice in England and Wales is for the Crown Prosecution Service to represent the requesting state, with the Lord Advocate performing a similar role in Scottish cases and the Crown Solicitor in Northern Ireland cases.
	However, we realised that nothing in the statute governing the CPS—the Prosecution of Offences Act 1985—explicitly conferred that role on the CPS. There was concern that a challenge might one day be mounted to the CPS's involvement in an extradition case. The same was true for the relevant authorities in Scotland and Northern Ireland. Therefore, on the last day of Grand Committee, we made amendments to put the matter beyond doubt and to make it clear that the relevant prosecuting authorities can act in extradition proceedings. Those amendments were welcomed by the noble Lord, Lord Hodgson, and we were very grateful for that.
	The amendments were phrased in terms of a power to act in extradition cases. However, on further consideration and following discussions with the CPS, we now believe that it would be better to express it in terms of a duty. We submit that the reason for that is simple enough. If there is any suggestion that the prosecuting authorities have a discretion on whether to act, fugitives may seek to mount a legal challenge to their decision to act in a particular case. All the available evidence suggests that fugitives will use any available legal avenue, however improbable it may sound.
	We doubt that any such challenges would succeed. Nevertheless, they would entail time and expense. Accordingly, we have brought forward the amendments to impose a duty on the CPS and the Lord Advocate to handle extradition cases within their jurisdictions. The duty does not apply where the requesting state wishes to make its own arrangements for legal representation. In that case, it does so at its own expense. On that basis, I hope that noble Lords will be content to agree with the amendment. I beg to move.

Lord Hodgson of Astley Abbotts: My Lords, we share the overall view that extradition processes are now unduly prolonged and elongated, often by those who seek to make mischief. As the noble Baroness explained, the amendment responds to concerns voiced by the CPS. It appears to us to be reasonable in that it will cut down unreasonable delays.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 294:
	Page 107, line 35, at end insert—
	"(2A) In section 3 after subsection (2) insert—
	"(2A) Subsection (2)(ea) above does not require the Director to have the conduct of any extradition proceedings in respect of a person if he has received a request not to do so and—
	(a) in a case where the proceedings are under Part 1 of the Extradition Act 2003, the request is made by the authority which issued the Part 1 warrant in respect of the person;
	(b) in a case where the proceedings are under Part 2 of that Act, the request is made on behalf of the territory to which the person's extradition has been requested.""
	On Question, amendment agreed to.
	Clause 195 [Lord Advocate: role in extradition proceedings]:

Baroness Scotland of Asthal: moved Amendments Nos. 295 and 296:
	Page 108, line 5, leave out "may" and insert "must"
	Page 108, line 9, at end insert—
	"(2) Subsection (1)(a) does not require the Lord Advocate to conduct any extradition proceedings in respect of a person if he has received a request not to do so and—
	(a) in a case where the proceedings are under Part 1, the request is made by the authority which issued the Part 1 warrant in respect of the person;
	(b) in a case where the proceedings are under Part 2, the request is made on behalf of the territory to which the person's extradition has been requested."
	On Question, amendments agreed to.

Baroness Scotland of Asthal: moved Amendment No. 297:
	After Clause 196, insert the following new clause—
	"PARTIES TO INTERNATIONAL CONVENTIONS
	(1) A territory may be designated by order made by the Secretary of State if—
	(a) it is not a category 1 territory or a category 2 territory, and
	(b) it is a party to an international Convention to which the United Kingdom is a party.
	(2) This Act applies in relation to a territory designated by order under subsection (1) as if the territory were a category 2 territory.
	(3) As applied to a territory by subsection (2), this Act has effect as if—
	(a) sections 72(4), 74(5), 75(10)(b),85(7), 87(7), 139 and 140 were omitted;
	(b) the conduct that constituted an extradition offence for the purposes of Part 2 were the conduct specified in relation to the territory in the order under subsection (1) designating the territory.
	(4) Conduct may be specified in relation to a territory in an order under subsection (1) designating the territory only if it is conduct to which the relevant Convention applies.
	(5) The relevant Convention is the Convention referred to in subsection (1)(b) which is specified in relation to the territory in the order under subsection (1) designating it."

Baroness Scotland of Asthal: My Lords, this new clause will preserve the status quo. Section 22 of the Extradition Act 1989 is concerned with extradition to parties to international conventions and the effect of the proposed new clause is no different to that provision.
	The United Kingdom has full extradition relations with approximately 120 countries, which generally means that we are able to extradite to and from those countries for the full range of extradition offences; that is, offences attracting penalties of more than 12 months' imprisonment. However, in addition the United Kingdom is a party to a number of international conventions, mostly made under the auspices of the United Nations. The full list is contained in Section 22 of the 1989 Act, as amended.
	A feature of those conventions is that they require those countries which have ratified them to extradite to other such countries for the offences in question, even though the countries concerned do not have general extradition relations. So, for example, the United Kingdom has ratified the 1963 convention on offences committed on board aircraft, known as the Tokyo Convention. So have many other countries. The vast majority of signatories are countries with whom we have general extradition relations. However, among the countries which have ratified the Tokyo Convention are China, Niger, the Philippines and Upper Volta, which are not full extradition partners.
	Our ratification of the Tokyo Convention obliges us to have in place a mechanism to enable us to extradite to those countries which have also ratified it, with which we do not have full extradition relations. Exactly the same is true for all the other conventions. I hope that with that outline noble Lords will feel able to agree the amendment. I beg to move.

Lord Hodgson of Astley Abbotts: My Lords, we have no problem with the principle of the amendment. As the Minister points out, it replicates Section 22 of the Extradition Act 1989. Perhaps a small question mark forms at the back of our mind as to why this was not picked up at an earlier stage of the Bill, but never mind. The Minister has been kind enough to give in a letter a detailed explanation of the background to the amendment and, indeed, has given further explanation from the Dispatch Box today.
	I would ask the Minister to confirm two matters. The first concerns the nature of the offences covered. She referred to the convention on offences committed on board aircraft. It is clear that this is a ring-fenced activity. There is no question of speciality being involved here. She mentioned Niger as a country with which we do not have extradition arrangements. There is no question of people being able to be extradited under that convention and then charged with something else in Niger. Speciality does not apply.
	The second matter on which I should like confirmation is the nature of the categories into which these conventions fall. We now have a new system with category 1 and category 2. The letter from the Minister made clear that these conventions will be treated as if they are a Part 2 country. It would be helpful to have that confirmation on the record again now so that it is clear and beyond peradventure.
	Finally—this may be an unfair question—the Minister stated in her letter that she did not expect the provision to be much used. Does she have any information about how much it has been used as it replicates an Act which has been in existence for some 13 years? Subject to satisfactory answers to the first two points concerning ring-fencing and the fact that these are category 2 territories or will be treated in the procedure as category 2 territories, we are content with the amendments.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord for referring to the letter, which I believe is in the Library. I am happy to clarify the points he raised. I shall try to short-circuit them but it may be important that I make three points. First, our obligations extend only to the offences covered by the convention. For example, another Tokyo Convention country can make an extradition request to us only for an offence committed on board an aircraft. Similarly, the extradition obligations imposed on us by the UN convention on the protection of nuclear material extends only to the illicit handling and trafficking of nuclear material.
	Secondly, I confirm that extradition requests made under conventions are, as noble Lords have indicated, very rare. We can trace only a small handful in the past 15 years, none of which has been successful. That brings me to a third and very important point. Conventions provide a mechanism for the request to be made. They do not oblige the United Kingdom to act on such requests. Any request is still subject to all the normal safeguards which the Bill provides. Earlier I mentioned the four countries which had ratified the Tokyo Convention with which we do not have full extradition relations. Without wanting to pre-empt a decision of the courts, it seems to me that if we did receive a request from one of those countries it is not impossible—I put it no stronger than that—that it might fall foul of the human rights protections in the Bill.
	This new clause enables the Secretary of State to designate by order convention countries as extradition partners for the purposes of the offences covered by the relevant convention. For the avoidance of doubt I should make clear that any requests will be treated as Part 2 requests and will always require prima facie evidence to be provided. I would expect that as now, such requests will be few and far between. I hope that I have dealt with all the issues raised by the noble Lord, Lord Hodgson.

On Question, amendment agreed to.
	Clause 197 [Special extradition arrangements]:

Lord Goodhart: moved Amendment No. 298:
	Page 109, line 9, leave out "the Secretary of State believes that"

Lord Goodhart: My Lords, Amendment No. 298 relates to Clause 197 of the Bill, which deals with special extradition arrangements where there is a bilateral agreement with a country that is not a regular extradition partner of the United Kingdom and is neither a category 1 or 2 territory. That agreement concerns the extradition of a person to that territory in special circumstances.
	Clause 197(1) states:
	"This section applies if the Secretary of State believes that—
	(a) arrangements have been made between the United Kingdom and another territory for the extradition of a person to the territory, and
	(b) the territory is not a category 1 territory or a category 2 territory".
	Subsection (2) then goes on to state that the Secretary of State may issue a certificate that those conditions are satisfied. Subsection (3) states that where a certificate has been issued, the territory is deemed for the purposes of that extradition to be a category 2 territory. Subsection (5) then goes on to state that the certificate issued under subsection (2) is conclusive evidence that the conditions are satisfied.
	The point that struck me on reading that clause is why it is necessary to refer to the belief of the Secretary of State. The purpose of the amendment is to remove the words,
	"the Secretary of State believes that",
	so that the section applies if arrangements have been made and the country is not a category 1 or 2 territory.
	One would have thought that extradition arrangements either have or have not been made. The Secretary of State will know, not just believe, that they have been made. The Secretary of State will certainly know whether the territory is a category 1 or 2 territory. Indeed, if arrangements have not been made it would appear that it would be ultra vires and beyond the powers of the Bill to order extradition. The effect of Clause 197(1) as it now stands and of the word "conclusive" in subsection (5) is that the conditions must be treated as satisfied even if they are not.
	The only circumstance of which I have been able to think in which it might be relevant to refer to the belief of the Secretary of State is where the Secretary of State believes that arrangements have been made but is not absolutely certain whether the persons with whom the arrangements have been made in the foreign territory have the authority to make those arrangements on behalf of that territory. That is a possible scenario.
	However, if there is real doubt over the existence of that authority, the matter should be investigated before extradition is ordered. Under those circumstances the issue ought to be raised and the Secretary of State's view may amount to prima facie evidence. Certainly it should not be conclusive. I beg to move.

Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord for tabling the amendment, which follows on from our interesting debate on this matter in Grand Committee. Clause 197 enables the United Kingdom to respond to ad hoc extradition requests from countries with which we do not have general extradition arrangements. The clause is modelled closely on Section 15 of the Extradition Act 1989, as I am sure the noble Lord will have recognised, and designed to serve exactly the same purpose. Such ad hoc requests are very rare and successful requests even more so. We can find no record of a successful ad hoc request made to the United Kingdom. There are obvious reasons for that because the UK has general extradition relations with over 100 countries, so there are not that many countries which would ever need to use the ad hoc procedure. The countries with which we do not have general extradition arrangements are, if I may be blunt, often the kind of countries where we might be unable to extradite for human rights reasons.
	Nevertheless, it is important to preserve our ability to deal with ad hoc requests. One reason is that we cannot rule out the possibility that we will receive ad hoc requests in respect of a serious criminal, on which we would want to be able to act. Additionally, being able to point to a facility in our legislation allowing us to deal with ad hoc requests increases the chance that any ad hoc requests that the UK might make to a country will be successful. Even though we know of no instances of a successful ad hoc request made to the UK, we can point to at least one case where an outgoing ad hoc request was successful. We were able in 1999 to secure the return of a person accused of multi-million pound fraud from Morocco.
	Therefore, I emphasise that the clause simply replicates the current situation. Ad hoc requests must always be accompanied by prima facie evidence. That is the background. I now turn to the amendment.
	Clause 197 applies if the Secretary of State "believes" that an ad hoc arrangement has been made with another country. If so he may issue a certificate to that effect. The amendment removes the reference to the Secretary of State's belief. I am not sure of the difference that would make or the advantage that would bring. That is why the noble Lord, Lord Goodhart, might have noticed that I looked a little puzzled. I was trying to work out what was the real difference. If a state with which we do not have general extradition relations wants to make ad hoc arrangements, it would need to approach us through diplomatic channels. Ministers would have to decide whether we should agree to the request for such ad hoc relations. If, and only if, Ministers decide that we should make ad hoc relations in a particular case can the request proceed and be considered by the courts in the normal way.
	I do not think that the Secretary of State will ever be in any doubt as to whether special extradition arrangements have been made. Nor, more importantly, for the purposes of the amendment, could he ever certify that such arrangements existed when they did not. Given that this would occur through diplomatic and political channels, there is no way that the Secretary of State could ever hold the "belief" that special arrangements were in place unless that was the case. Looking at the question of "belief", the Secretary of State is always in the position of saying, "On the information presented to me it is my belief that this is so", bearing in mind that the Secretary of State is not able independently to ratify that those matters are proven that he is told are proven. He or she is always reliant upon the information to form that belief.
	I do not see that the amendment is necessary. There is not a gap or a loophole that we need to plug. Where problems do not exist, we should not be amending the Bill for the sake of it. If we were to change the Bill I can foresee a large number of carefully planned submissions about teasing out on what basis the Home Secretary said that he "knew", as opposed to "believed", that the facts were indeed as they were described to him. The current wording will do well, because that is the way it has worked so far.

Lord Goodhart: My Lords, I remain entirely unpersuaded by the Minister. It is undesirable as a matter of drafting to refer to the Secretary of State's "belief" on matters which can be established one way or another—not simply as a matter of belief. The fact that the wording is based on previous wording which has been used only on a very few occasions is no reason why it should be repeated in the Bill. I suggested one circumstance to the noble Baroness—when there is uncertainty about the authority of the officials acting on behalf of the other state to enter into an agreement. There could then be genuine grounds for challenging the Secretary of State's belief that arrangements have been made. However, this is a matter that is unlikely to give rise to issues of importance. Somewhat reluctantly, I take the view that I should not take up the time of the House by calling a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 203 [Appeal against grant of bail]:

Lord Bassam of Brighton: moved Amendment No. 299:
	Page 114, leave out lines 23 and 24.

Lord Bassam of Brighton: My Lords, I am endeavouring to set a record for brevity in moving this and the following amendments by saying that they simply tidy up definitions in the Bill. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton: moved Amendment No. 300:
	Page 114, line 26, at end insert—
	""magistrates' court" and "court" in relation to extradition proceedings means a District Judge (Magistrates' Courts) designated for the purposes of Part 1 or Part 2 of the Extradition Act 2003 by the Lord Chancellor;"
	On Question, amendment agreed to.

Lord Bassam of Brighton: moved Amendments Nos. 301 to 303:
	After Clause 204, insert the following new clause—
	"RECEIVABLE DOCUMENTS
	(1) A Part 1 warrant may be received in evidence in proceedings under this Act.
	(2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
	(3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
	(4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies—
	(a) it purports to be signed by a judge, magistrate or other judicial authority of the territory;
	(b) it purports to be authenticated by the oath or affirmation of a witness.
	(5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act."
	After Clause 204, insert the following new clause—
	"WRITTEN STATEMENTS AND ADMISSIONS
	(1) The provisions mentioned in subsection (2) apply in relation to proceedings under this Act as they apply in relation to proceedings for an offence.
	(2) The provisions are—
	(a) section 9 of the Criminal Justice Act 1967 (c. 80) (proof by written statement in criminal proceedings);
	(b) section 10 of the Criminal Justice Act 1967 (c. 80) (proof by formal admission in criminal proceedings);
	(c) section 1 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (c. 28) (proof by written statement in criminal proceedings);
	(d) section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (proof by formal admission in criminal proceedings).
	(3) As applied by subsection (1) in relation to proceedings under this Act, section 10 of the Criminal Justice Act 1967 (c. 80) and section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 have effect as if—
	(a) references to the defendant were to the person whose extradition is sought (or who has been extradited);
	(b) references to the prosecutor were to the category 1 or category 2 territory concerned;
	(c) references to the trial were to the proceedings under this Act for the purposes of which the admission is made;
	(d) references to subsequent criminal proceedings were to subsequent proceedings under this Act."
	After Clause 204, insert the following new clause—
	"BURDEN AND STANDARD OF PROOF
	(1) This section applies if, in proceedings under this Act, a question arises as to burden or standard of proof.
	(2) The question must be decided by applying any enactment or rule of law that would apply if the proceedings were proceedings for an offence.
	(3) Any enactment or rule of law applied under subsection (2) to proceedings under this Act must be applied as if—
	(a) the person whose extradition is sought (or who has been extradited) were accused of an offence;
	(b) the category 1 or category 2 territory concerned were the prosecution.
	(4) Subsections (2) and (3) are subject to any express provision of this Act.
	(5) In this section "enactment" includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament."
	On Question, amendments agreed to.
	Clause 206 [National security]:
	[Amendment No. 304 not moved.]

Lord Bassam of Brighton: moved Amendment No. 305:
	After Clause 208, insert the following new clause—
	"SERVICE OF NOTICES
	Service of a notice on a person under section 53, 55, 57, 129, 130 or 131 may be effected in any of these ways—
	(a) by delivering the notice to the person;
	(b) by leaving it for him with another person at his last known or usual place of abode;
	(c) by sending it by post in a letter addressed to him at his last known or usual place of abode."
	On Question, amendment agreed to.

Lord Hodgson of Astley Abbotts: moved Amendment No. 306:
	After Clause 208, insert the following new clause—
	"COMPATIBILITY WITH THE CRIME INTERNATIONAL (CO-OPERATION) ACT 2003
	The Secretary of State shall certify that the provisions of this Act are compatible with the provisions of the Crime International (Co-operation) Act 2003."

Lord Hodgson of Astley Abbotts: My Lords, Amendment No. 306 re-tables a new clause which we put forward in Grand Committee. We had a useful debate then about the crossover between the Crime (International Co-operation) Bill and this Bill before your Lordships' House today. Both Bills are progressing through Parliament at the same time. It seems clear that the Crime (International Co-operation) Bill will achieve Royal Assent before the Extradition Bill. The provisions in both Bills are sufficiently close for your Lordships to have concerns about their compatibility.
	The Crime (International Co-operation) Bill allows policemen to pursue criminals in this country for up to five hours for the purposes of surveillance. The Extradition Bill allows an arrest warrant to be issued by a foreign authority for the arrest of a criminal who has crossed over into the United Kingdom.
	In Grand Committee, the noble Lord, Lord Davies of Oldham, speaking for the Government professed to be puzzled by our amendment. He commented that,
	"Acts of Parliament are necessarily compatible with each other. Any later legislation would amend that which preceded it, were there to be any incompatibility".—[Official Report, 10/9/03; col. GC 36.]
	That may be true, but in the circumstances it is misleading. The Minister was talking about compatibility on paper. No Act of Parliament can undermine or reverse another without stating so on the face of the Bill by making the required amendments. We were talking about the interaction of the powers provided by the two Bills in practice. Essentially, it is a question of workability.
	My noble friend Lady Carnegy of Lour spoke about the fact that both Bills are about the same conduct; that is, the pursuit by foreign policemen with a view to the potential arrest of a criminal who has strayed on to our shores. In Grand Committee she asked,
	"can the Government assure us that there is no circumstance in which a person could use the powers in one Bill for the purposes of the other?".
	In response, the Minister claimed that he was,
	"not really in the right position",
	to answer her concerns, and said that the Government would,
	"reflect on that representation and look very carefully at the matter".—[Official Report, 10/9/03; col. GC 37.]
	Encouraged by that positive response, we have therefore tabled the amendment again on Report, to find out how the Minister has considered the point and what response the Government have. I beg to move.

Baroness Carnegy of Lour: My Lords, I, too, look forward to the Minister's reply and hope that he will be able to enlighten us on my question to him in Grand Committee.

Baroness Scotland of Asthal: My Lords, I am happy to do so. I hope that the noble Baroness will already have been enlightened from the contents of the letter I wrote to noble Lords. I am grateful for this opportunity. I hope that I can be brief, as we previously covered these issues when they were raised in some detail.
	The noble Lord, Lord Hodgson, is right to say that when the amendment was raised in another place the focus of the debate was a somewhat—if I may say so—fanciful anxiety about foreign police officers coming into this country to make arrests using European arrest warrants. The Bill was amended on Report in another place to make it absolutely clear who can execute a European arrest warrant. I was pleased to note that during our debate on the issue noble Lords opposite accepted unequivocally that foreign police officers will not be carrying out extradition functions in this country. Indeed, the noble Lord, Lord Hodgson—and with delight, I quote him—said:
	"It is clear beyond peradventure that the Minister and his colleagues elsewhere in government do not wish non-UK constables to arrest people in this country".—[Official Report, 18/6/03; col. GC 306.]
	So I hope that we can all agree that this issue provides no cause for bringing back the amendment.
	However, when we discussed the amendment in Grand Committee, as the noble Lord indicated, the noble Baroness, Lady Carnegy of Lour, sought an assurance that,
	"there is no circumstance in which a person could use the power in one Bill for the purposes of the other".—[Official Report, 10/9/03; col. GC 37.]
	We are able, with great pleasure, to give such an assurance. As I say, that was contained in a letter I wrote to the noble Baroness, Lady Anelay, on 22nd September, and which I hope was copied to all noble Lords who participated in Grand Committee.
	The letter said that,
	"there would be no circumstances in which the powers conferred in one Bill—the Extradition Bill or the Crime (International Co-operation Bill)—"—
	which came into being today on achieving Royal Assent—
	"could be used for the purposes of the other Bill".
	The letter continued by reiterating the fact that both Bills are compatible and that nothing in the Extradition Bill draws upon powers granted in the C(IC) Bill, nor does the C(IC) Bill use powers under the Extradition Bill. Acts of Parliament are by necessity compatible with each other. Later legislation amends that which precedes it, should there be any incompatibility. The only complication arises when two or more pieces of legislation which cross-refer to each other are passing through Parliament at the same time and it is not known which will receive Royal Assent first.
	We shall shortly turn to a government amendment which is designed to deal precisely with that eventuality. I do not want to pre-empt discussion of that amendment, although I should make it clear that it is designed to deal with the overlap between this Bill and the Criminal Justice and Courts Bill rather than the Crime (International Co-operation) Bill. I can assure your Lordships that the two Acts, as we hope they will become, with which the amendment is concerned will be compatible with each other as they will with all other Bills which have been or are being passed through Parliament this Session. I really cannot see that there is any necessity for this amendment or what it would achieve. Having read, most fulsomely I hope, all the reassurances into the record, I would invite the noble Lord to withdraw his amendment.

Lord Hodgson of Astley Abbotts: My Lords, as ever, we are grateful to the noble Baroness for her reply. I was struggling with my papers to see whether I had received the letter. Perhaps I have, but I was not aware that we had been written to on this specific point, at least I have not received a copy. That is probably my fault and not that of the officials. I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hodgson of Astley Abbotts: moved Amendment No. 307:
	After Clause 208, insert the following new clause—
	"Annual report
	For the first five years after the commencement of this Act, the Secretary of State shall publish and lay before both Houses of Parliament an annual report on the operation of the provisions of the Act."

Lord Hodgson of Astley Abbotts: My Lords, we listened carefully to the debate which took place on the point in Grand Committee. I take the opportunity to thank the noble Lord, Lord Filkin, in particular, for the constructive attitude with which he approached the amendment.
	We made very clear at that stage our belief that there should be an annual report in view of the unprecedented nature of the new overhauled extradition procedure, especially taking into account the implementation for the first time of the European arrest warrant. We have been told repeatedly that the new system will speed up processes, that the time limits in the Bill are appropriate and that the new procedure will lead to a more efficient system of surrender, in particular, with category 1 states. All we ask is that a report should be published which gives us the required information and statistics to see whether the operation of the Act in practice delivers its promised results.
	In Committee, the Minister intimated that he saw some merit in analysing and monitoring the performance of the Bill for a limited period after its enactment and in making sure that this information was placed in the public domain. That is clearly a progressive and big step forward. We thank the noble Lord for agreeing that there is something to be said for keeping track of the performance of the legislation in its early years. He mentioned keeping a record of such data as the number of requests received, the operation of the time limits, especially in Part 1, and the time each extradition request takes to be processed in its entirety as well as some other statistics.
	We, of course, welcome the Government's commitment to put such information before Parliament. We have tabled the amendment today in order to try to elicit from the Minister any further thoughts the Government might have had on the form such information would take, or the time period during which it would be provided. On reflection, and following the comments made in Committee, we have concluded that an annual report for an indefinite period of time was too much to ask for.
	We have, therefore, limited our request to an annual report for the first five years of the Act's operation. That would be a sufficient period for the Act to overcome any teething troubles and to settle down into our national legislation. It is also likely that most of the transitional provisions for dealing with outstanding requests under the old system would have been cleared up in the first year or two and, therefore, data on the operation of the Act would be more accurate and representative. I beg to move.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for tabling the amendment and speaking to it with such clarity. I was expecting the noble Baroness to speak to it, as she loves annual reports, but I shall not dwell on that. The amendment has been tabled in different guises at regular stages during the Bill's progress through Parliament. Noble Lords opposite will not be too surprised to hear that the Government could not advise your Lordships' House to support the amendment. However, I wish to make a positive response and to build on what my noble friend Lord Filkin said in Grand Committee.
	It is right that there should be continued interest in the operation of this and all legislation once enacted. Home Office Ministers are, and will continue to be, ready to respond to Questions on the operation of the legislation, giving details of numbers of cases, time taken to process cases and other important information. But, as I am sure the noble Lord would expect, we would resist commenting on specific cases.
	There is no need for a formal annual report. Reports on the operation of legislation are not a common feature. There is no such requirement for existing legislation, and we are not convinced that the requirement to publish an annual report is a desirable precedent to establish in this context. It has been claimed that the Bill is a radical departure from existing procedures and legislation and that it therefore merits greater scrutiny and accountability. The Bill is a clear change from current arrangements, as are many Acts of Parliament, but radical change alone does not necessarily warrant a statutory requirement for an annual report.
	In this context, it might be worth considering where annual reports are most commonly used. The most obvious example is in terrorism and security legislation, which often deals with matters and procedures conducted in secret. In those circumstances, it is obviously right that an independent commissioner should consider their operation and produce a report to Parliament.
	Although the Extradition Bill may be technical and complex at times, its provisions are thorough and transparent, at each stage of the process, on what is to happen and how. The intention behind the proposal is that the annual report would look into the operation of the legislation, with particular emphasis on those points where it differs from the old system.

Lord Clinton-Davis: My Lords, is it not perfectly possible for anybody in this House to table a Question, orally or in writing?

Lord Bassam of Brighton: My Lords, the noble Lord is right. That is one of the points that we have made previously on the issue.
	We would not expect a report to cover individual cases or to make assumptions about how cases would have been resolved under the old system. It would not be able to go usefully beyond the statistical information that would be available, in any event, through Questions in your Lordships' House. It could not reveal, for example, whether dual criminality was an issue in a case, or indicate what effect the absence of the Secretary of State's role had in Part 1. The first would involve looking at individual cases and the second would be pure conjecture. There are therefore good reasons why it would be undesirable to impose a formal statutory requirement to provide an annual report.
	Having made all those negative remarks, I recognise that there is, properly, real interest in the operation of the legislation. I therefore echo what my noble friend said in Grand Committee: the Government will place in the public domain information about the operation of the new system. We envisage doing that once the new legislation has had time to bed down—probably after it has been operating for a year or so.
	The information that we have in mind is: the number of requests that we have received, both Part 1 and Part 2, and the countries from which they have come; the proportion that have been successful; the average length of time taken to complete a case; the number of outgoing requests that the UK has made and their success rate. As the noble Lord will appreciate, it is not an exhaustive list; it could probably be expanded. The Government will be interested to hear from the noble Lord about other ideas and subject headings that he might wish to see covered. Anything that we publish will not contain details of individual cases; nor can it contain any comparison, other than a purely statistical one, with the existing system.
	We are still considering how best to put that information into the public domain. The most obvious way would be an arranged Parliamentary Question or a written Ministerial Statement in another place, but we have not taken a final view on that; nor have we taken a view on regularity. I hope that noble Lords will welcome the Government's clear commitment to publish information about the operation of the new system so that they, and everyone else with an interest in the subject, can judge whether it has lived up to its promise of expediting and simplifying our existing and future extradition procedures. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the Minister for his response. I was disappointed that he fell straight back on to the old chestnut of Written Questions. Officials who deal with Written Questions are expert at glancing it down to long leg for a single. Trying to get information out of a Written Answer is very difficult—it is not debatable either. We argue that this is a distinctively different type of legislation because it includes the European arrest warrant.

Lord Clinton-Davis: My Lords, I thank the noble Lord for giving way. He is quite wrong about not being able to debate the issues. If, for example, the reply is unsatisfactory, what is wrong with a debate during the dinner hour? That is perfectly possible, is it not?

Lord Hodgson of Astley Abbotts: My Lords, of course it is possible, but it is a question of having enough information gathered together from Written Questions, putting it together in a comprehensible form and finding a slot in the dinner hour for the debate to take place. That is quite a major effort. We argue that this is a distinctively different type of legislation because of the European arrest warrant.
	Although the noble Lord, Lord Bassam, said that annual reports were not a common feature, he was good enough to say that the contents of this legislation represent a radical departure. We can argue about the European arrest warrant, and we have done so, but there is public concern about it. We think, therefore, that it is a sufficient break with past practice for it not to be unreasonable for us to ask the Government to have a check for the first five years—we accept the argument against a longer period. It should not be a check that must be dug out by a series of Written Questions; it should be a proper check in the form of an annual report. I am afraid that I do not find the Minister's response convincing, so I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 307) shall be agreed to?
	Their Lordships divided: Contents, 56; Not-Contents, 128.

Resolved in the negative, and amendment disagreed to accordingly.

Baroness Scotland of Asthal: moved Amendment No. 308:
	After Clause 211, insert the following new clause—
	"EUROPEAN FRAMEWORK LIST
	(1) The European framework list is the list of conduct set out in Schedule (European framework list).
	(2) The Secretary of State may by order amend Schedule (European framework list) for the purpose of ensuring that the list of conduct set out in the Schedule corresponds to the list of conduct set out in article 2.2 of the European framework decision.
	(3) The European framework decision is the framework decision of the Council of the European Union made on 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA)."
	On Question, amendment agreed to.
	Clause 212 [Other interpretative provisions]:

Baroness Scotland of Asthal: moved Amendments Nos. 309 to 312:
	Page 120, line 8, at end insert—
	"(2A) References to the designated authority must be read in accordance with section 2(9)."
	Page 120, line 12, at end insert—
	"(5A) "Asylum claim" has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41)."
	Page 120, line 16, leave out subsection (7).
	Page 120, line 31, leave out "and 211" and insert "to (European framework list)"
	On Question, amendments agreed to.
	Clause 215 [Amendments]:

Baroness Scotland of Asthal: moved Amendment No. 313:
	Page 121, line 4, at end insert—
	"(2) The Secretary of State may by order make—
	3 (a) any supplementary, incidental or consequential provision, and
	(b) any transitory, transitional or saving provision,
	which he considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to any provision of this Act.
	(3) An order under subsection (2) may, in particular—
	(a) provide for any provision of this Act which comes into force before another such provision has come into force to have effect, until that other provision has come into force, with such modifications as are specified in the order, and
	(b) amend, repeal or revoke any enactment other than one contained in an Act passed in a Session after that in which this Act is passed.
	(4) The amendments that may be made under subsection (3)(b) are in addition to those made by or under any other provision of this Act."

Baroness Scotland of Asthal: My Lords, it gives me pleasure to move this series of amendments and I will briefly explain the nature of them. I hope not to take too long, but it is important to explain to the House how these amendments fit in. I crave your Lordships' patience.
	Amendment No. 313 should not come as too much of a surprise, because provisions with virtually identical wording can be found in the Courts Bill and the Criminal Justice Bill. The amendment is necessary because all three Bills are going through at the same time. They contain various cross-references to each other, but we do not know in which order they will receive Royal Assent.
	For example, the Criminal Justice Bill refers to extradition under the Extradition Act of 1989. That reference needs to be updated, but that cannot be done until this Bill has been enacted. This amendment allows us to make the necessary minor and consequential amendments to other pieces of legislation being enacted in the same parliamentary Session. As I said earlier, the other relevant pieces of legislation contain something in similar vein.
	As your Lordships will be aware, at almost the same time that we began Report stage last week, the Select Committee on Delegated Powers and Regulatory Reform published its supplementary report on the Bill. I am pleased to say that, generally, government amendments were given a clean bill of health. However, the Committee made a specific recommendation in respect of Amendment No. 313. It suggested that the power to amend other Acts should be subject to the affirmative resolution procedure. As we have already demonstrated in connection with this Bill, we attach very great importance to the views and recommendations of that committee. Accordingly, despite the rather short notice, we have brought forward amendments to give effect to the committee's recommendation. Amendments Nos. 321A to 321C will replace Amendment No. 321, which I shall not be moving. Their effect is to make orders under the new Clause 215(2) inserted by Amendment No. 313 subject to the affirmative procedure if they contain provisions amending or repealing an Act.
	I am sure your Lordships will welcome that important extra safeguard, and I hope that having it means that the noble Baroness, Lady Anelay, will see no need to press her Amendment No. 314 which would remove the reference to "supplementary" changes. I beg to move.

Lord Hodgson of Astley Abbotts: moved, as an amendment to Amendment No. 313, Amendment No. 314:
	Line 3, leave out "supplementary,"

Lord Hodgson of Astley Abbotts: My Lords, the Minister has given us a very detailed and careful explanation of the complexities and we are grateful to the Government for their reaction to the Select Committee on Delegated Powers and Regulatory Reform. We were concerned about the need for the word "supplementary", because "incidental" and "consequential" covered everything that the Minister was talking about and "supplementary" seemed to take it a touch wider, especially when read in conjunction with line 6 "for giving full effect". That gave us cause for concern. However, given her explanation, if she could reassure us on that point, we would not press our amendment. We would be happy with her explanations and her amendment as currently drafted. I beg to move.

Baroness Carnegy of Lour: My Lords, as a member of the Delegated Powers and Regulatory Reform Committee, I am extremely glad that the Minister accepted our suggestion. However, in relation to subsection (3) of Amendment No. 313, I was at school so long ago that I learned to parse sentences. I challenge the Minister to parse the sentence in subsection (3). It is all one sentence. It is extremely difficult to understand. I know that lawyers must ensure that other lawyers are necessary, but for an ordinary human being it is really extremely difficult to understand that sentence. Does the noble Baroness agree?

Baroness Scotland of Asthal: My Lords, I had better declare an interest as a lawyer. In terms of parliamentary draftsman-speak, the amendment is drafted in a clear and proper way. I understand what the noble Baroness says. The only comfort I can offer is that it is likely that the people who will be most used to construing the provisions will be lawyers and at least they will understand the language.
	In relation to the comments made by the noble Lord, Lord Hodgson, any supplemental, incidental or consequential provision will arise as a result of the changes in the respective Bills and how they impact upon each other. It will not be supplementary for any other reason. I hope that, by also adding the provision that that will be done by the affirmative procedure, that gives us "belt and braces". If there is any unhappiness, we have an opportunity to tease it out and put it to rest. With that explanation, I hope that the noble Lord will be content.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the Minister for her reply. As I said, we wanted to explore the use of the word "supplementary". We are perfectly happy with her explanation and I beg leave to withdraw the amendment.

Amendment No. 314, as an amendment to Amendment No. 313, by leave, withdrawn.
	On Question, Amendment No. 313 agreed to.
	[Amendments Nos. 315 to 317 had been withdrawn from the Marshalled List.]
	Clause 219 [Orders and regulations]:

Lord Hodgson of Astley Abbotts: moved Amendment No. 317A:
	Page 121, line 29, at end insert—
	"(4A) An order under section 217 which makes provision for any or all of the provisions of this Act to have effect in relation to any extradition proceedings that were commenced when the Extradition Act 1989 (c. 33) was for the time being in force, shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament."
	The noble Lord said, My Lords, this amendment inserts a new subsection into Clause 219, which lays down procedures for the regulations that will establish the detailed procedures governing the operation of the Bill. The amendment is designed to clarify beyond peradventure the procedures with regard to cases that are in progress at the time of the commencement of the Act. The issue caused some concern in Committee and, to be candid, the noble Lord, Lord Filkin, was not as persuasive or as clear as he normally is. It is vital that any confusion about under which system—old or new—a particular case falls should be eliminated.
	We have received notes from Mr Clive Nicholls QC, an expert in the field of extradition. Much of what I say is dependent on his expertise, because he too is confused by the way in which the provisions are currently laid down. Clause 217 is a Henry VIII clause, leaving the Secretary of State to make provision for commencement. It is to be contrasted with an Act making express provision for commencement. In the debate in Grand Committee on 10th September, the noble Lord, Lord Filkin stated:
	"Clearly, the new legislation should apply to all requests".—[Official Report, 10/9/03; Col. GC 44.]

Baroness Scotland of Asthal: My Lords, I hope that I will be able to give the noble Lord some pleasure and be able to foreshorten what he was about to say. I know that there was confusion about this matter, but I believe that I can make a welcome announcement to your Lordships that will obviate the need for this amendment. I should say at the outset that the Government's position is that the new legislation should apply to all requests received after the point at which the new Act comes into force. I rose to my feet because I know that the noble Lord may have wished to explore in some detail the reason why there needs to be clarity. I just want to share with him that we agree.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the noble Baroness for those comments. The question on receipt is whether the request is received at the Foreign Office or the Home Office or at the time when the Secretary of State issues his authority or is ordered to proceed, signifying that he has received the request.
	The concern has been made clear to us that some injustice and prejudice could be caused to an accused if there were a delay between these two events. I am not saying that it is necessarily deliberate—it might be, but it might be an administrative delay. Therefore, one was trying to ensure that there would be no delay of any kind. Perhaps the noble Baroness could clarify her definition of "received". I beg to move.

Baroness Scotland of Asthal: My Lords, I know that it is unusual, but perhaps I may now explain the Government's understanding. The noble Lord will be able to hear it and consider whether he is content with our proposals.
	The Government's position is that the new legislation should apply to all requests received after the point when the new Act comes into force. Therefore, if, as we hope, the new Act comes into force on 1st January 2004, a request received on 30th December 2003 will be handled under the 1989 Act procedure. A request received, for example, on 5th January 2004 will be handled under the new procedure.
	I turn to the specifics of the amendment. Its effect would be to provide that any order which has the effect of transferring existing cases already in the system to the new arrangements should be subject to the affirmative resolution procedure. I understand why the noble Lord's amendment was tabled. The Government are on record as saying that we might want to transfer a small number of cases already in the system to the new arrangements when they come into force. This power would have been used only sparingly and where it was in the interests of justice. Of course, the person concerned would have had the opportunity to mount a legal challenge to use it. Therefore, "received" means the first point when it is received by any UK authority.
	Nevertheless, it became clear that the possibility of a case being transferred was causing a considerable amount of disquiet, of which this amendment is the latest manifestation. The Government have therefore reflected further on the matter and I am now in a position to give your Lordships the outcome of those deliberations. We have decided that no existing cases will be transferred to the new arrangements and that all cases already in the system when the new Act comes into force will continue to be dealt with under the 1989 procedures. I hope that that statement is unequivocal and unambiguous. I hope, too, that noble Lords will welcome it as a helpful clarification.
	Under the terms of the Bill, the case transfer could have been achieved in one of two ways; by using a commencement order or by using a designation order. In either case, an order would have been necessary. It could not have been achieved purely administratively. So your Lordships need not fear that we might try to get away with any case of that kind. It would require an order and no such order will be made. I hope therefore that the noble Lord will feel that it is not necessary to pursue his amendment and that as a matter of general policy, it would be an unusual amendment to make. As I am sure your Lordships are aware, making commencement orders subject to affirmative resolution procedure would be virtually unprecedented.
	I hope that I have said enough to make the noble Lord feel comfortable, but if he needs further clarification, I shall be happy to give it.

Lord Hodgson of Astley Abbotts: My Lords, I thank the Minister for that helpful reply. I am comforted by the fact that she has defined "received" as being by any UK authority, so there is no question of any administrative slip-up. She has also given the commitment that no existing cases will be transferred from one procedure to the other. Given those two assurances, I am happy to beg leave to withdraw Amendment No. 317A.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal: moved Amendment No. 318:
	Page 121, line 30, leave out subsection (5).
	On Question, amendment agreed to.
	[Amendment No. 319 had been withdrawn from the Marshalled List.]
	[Amendment No. 320 had been re-tabled as Amendment No. 317A.]
	[Amendment No. 321 had been withdrawn from the Marshalled List.]

Baroness Scotland of Asthal: moved Amendments Nos. 321A to 322:
	Page 121, line 33, after "order" insert "mentioned in subsection (6A)"
	Page 121, line 33, leave out "under section 144(10) or 175(4)"
	Page 121, line 35, at end insert—
	"(6A) The orders are—
	(a) an order under any of these provisions—
	section 1(1);
	section 70(1);
	section 72(4);
	section 74(5);
	section 75(10)(b);
	section 85(7);
	section 87(7);
	section 144(10);
	section 175(4);
	section (European framework list)(2);
	(b) an order under section 215(2) which contains any provision (whether alone or with other provisions) amending or repealing any Act or provision of an Act."
	Page 121, line 35, at end insert—
	"(7) A statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament if it contains subordinate legislation other than an order mentioned in subsection (6A) or an order under section 217.
	(8) A territory may be designated by being named in an order made by the Secretary of State under this Act or by falling within a description set out in such an order.
	(9) An order made by the Secretary of State under section 1(1) or 70(1) may provide that this Act has effect in relation to a territory designated by the order with specified modifications."
	On Question, amendments agreed to.
	Clause 220 [Orders in Council]:

Baroness Scotland of Asthal: moved Amendments Nos. 323 and 324:
	Page 122, line 2, leave out "any provision of this Act other than section 218" and insert "section 179 or 180"
	Page 122, line 9, leave out subsections (3) and (4).
	On Question, amendments agreed to.
	Clause 222 [Extent]:

Baroness Scotland of Asthal: moved Amendment No. 325:
	Page 122, line 19, leave out "and 175" and insert ", 175 and (Written statements and admissions)"
	On Question, amendment agreed to.
	Schedule 1 [Re-extradition: Modifications]:

Baroness Scotland of Asthal: moved Amendments Nos. 326 and 327:
	Page 123, line 21, leave out paragraph 8.
	Page 126, line 37, leave out paragraph 38.
	On Question, amendments agreed to.

Baroness Scotland of Asthal: moved Amendment No. 328:
	After Schedule 1, insert the following new schedule—
	:TITLE3:"EUROPEAN FRAMEWORK LIST
	1 Participation in a criminal organisation.
	2 Terrorism.
	3 Trafficking in human beings.
	4 Sexual exploitation of children and child pornography.
	5 Illicit trafficking in narcotic drugs and psychotropic substances.
	6 Illicit trafficking in weapons, munitions and explosives.
	7 Corruption.
	8 Fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests.
	9 Laundering of the proceeds of crime.
	10 Counterfeiting currency, including of the euro.
	11 Computer-related crime.
	12 Environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties.
	13 Facilitation of unauthorised entry and residence.
	14 Murder, grievous bodily injury.
	15 Illicit trade in human organs and tissue.
	16 Kidnapping, illegal restraint and hostage-taking.
	17 Racism and xenophobia.
	18 Organised or armed robbery.
	19 Illicit trafficking in cultural goods, including antiques and works of art.
	20 Swindling.
	21 Racketeering and extortion.
	22 Counterfeiting and piracy of products.
	23 Forgery of administrative documents and trafficking therein.
	24 Forgery of means of payment.
	25 Illicit trafficking in hormonal substances and other growth promoters.
	26 Illicit trafficking in nuclear or radioactive materials.
	27 Trafficking in stolen vehicles.
	28 Rape.
	29 Arson.
	30 Crimes within the jurisdiction of the International Criminal Court.
	31 Unlawful seizure of aircraft/ships.
	32 Sabotage."

Baroness Scotland of Asthal: My Lords, I beg to move Amendment No. 328.

Baroness Anelay of St Johns: had given notice of her intention to move, as an amendment to Amendment No. 328, Amendment No. 329:
	Line 22, leave out "and xenophobia"

Baroness Anelay of St Johns: My Lords, the amendment has not been spoken to and it would not be customary to speak again, although we have every right to do so. However, it may be for the convenience of the House if I indicate that since looking again at the Minister's answer when we debated these matters on a previous day, I shall not be returning to this matter at Third Reading.

[Amendment No. 329, as an amendment to Amendment No. 328, not moved.]
	On Question, Amendment No. 328 agreed to.
	Schedule 2 [Amendments]:
	[Amendment No. 330 not moved.]

Criminal Justice Bill

Baroness Scotland of Asthal: My Lords, I beg to move that the Bill be now further considered on Report.
	Moved, That the Bill be now further considered on Report.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.
	Schedule 3 [Allocation of cases triable either way, and sending cases to the Crown Court etc]:

Baroness Scotland of Asthal: moved Amendment No. 41:
	Page 190, line 10, leave out ", (1B)"

Baroness Scotland of Asthal: My Lords, Amendments Nos. 41 to 68 are minor consequential amendments. They fall into two groups. Amendments Nos. 41 to 49 relate to provisions which have already been amended by Part 1 of Schedule 3, which is entitled "Principle amendments". These include certain sections of the Magistrates' Court Act 1980, the Crime and Disorder Act 1998 and the Powers of Criminal Courts (Sentencing) Act 2000. All are minor amendments which are either consequential on some other provisions in the Bill or drafting amendments aimed at greater clarity.
	Amendments Nos. 50 to 68 are additions to the list of consequential amendments to other statutes in Part 2 of Schedule 3. The great majority of these are to take account of the abolition of committals to trial and of examining justices and the substitution of the new sending procedure. Amendment No. 242 makes corresponding additions, where necessary, to the repeals listed in Schedule 33.
	I apologise that it has proved impossible to observe the convention that amendments should be tabled a week in advance. The reasons for that are straightforward. Most of these amendments are consequential and the task of identifying where they are required and drafting the appropriate amendment was very time consuming. This imposed a considerable burden on officials and draftsmen who also had to work on the substantive parts of the Bill, to which they gave priority. I am sure that your Lordships will agree that that order of priority was justifiable. Of the numerous amendments to Schedule 3, none is substantive in nature.
	There are a few more trivial, but very worthwhile, improvements to the drafting of the new provisions on allocation and sending. The remaining amendments, which are the great majority, merely amend existing legislation in line with the changes made by Schedule 3—chiefly, as I said, the abolition of committal proceedings and the introduction of the sending procedure for all cases going to the Crown Court. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 42 to 68:
	Page 190, line 41, leave out "or (2)"
	Page 197, line 12, leave out "or (2)"
	Page 204, line 20, at end insert ", and
	(b) in paragraph (b), for "subsection (7) of that section" there is substituted "section 51D(1) of this Act"."
	Page 204, line 21, leave out sub-paragraph (3) and insert—
	"( ) In paragraph 2—
	(a) in sub-paragraph (1)—
	(i) after "51" there is inserted "or 51A",
	(ii) for ""subsection (7) of that section" there is substituted "section 51D(1) of this Act",
	(b) sub-paragraphs (4) and (5) are omitted.
	( ) In paragraph 4, in sub-paragraph (1)(a), after "51" there is inserted "or 51A".
	( ) In paragraph 5, in sub-paragraph (2), after "51" there is inserted "or 51A".
	( ) Paragraph 6 is amended as follows—
	(a) in sub-paragraph (1), after "51" there is inserted "or 51A",
	(b) in sub-paragraph (2), for the words from the second "offence" to the end there is substituted "indictable offence for which he was sent for trial or, as the case may be, any of the indictable offences for which he was so sent", and
	(c) in sub-paragraph (9), for "indictable-only" there is substituted "indictable"."
	Page 204, line 25, at end insert—
	"( ) in sub-paragraph (3), after "each" there is inserted "remaining","
	Page 205, line 3, at end insert—
	"( ) in sub-paragraph (2)(a), after "each" there is inserted "remaining","
	Page 208, line 28, leave out "or (2)"
	Page 210, line 17, leave out "or (2)"
	Page 212, line 5, at end insert—

"Territorial Waters Jurisdiction Act 1878 (c. 73)

In section 4 of the Territorial Waters Jurisdiction Act 1878 (provisions as to procedure), in the paragraph beginning "Proceedings before a justice of the peace", for the words from the beginning to "his trial" there is substituted—
	"Any stage of proceedings—
	(a) before the summary trial of the offence; or
	(b) before the offender has been sent for trial for the offence,".

Bankers' Books Evidence Act 1879 (c. 11)

(1) The Bankers' Books Evidence Act 1879 is amended as follows.
	(2) In section 4 (proof that book is a banker's book), the paragraph beginning "Where the proceedings" is omitted.
	(3) In section 5 (verification of copy), the paragraph beginning "Where the proceedings" is omitted.

Explosive Substances Act 1883 (c. 3)

In section 6 of the Explosive Substances Act 1883 (inquiry by Attorney-General, and apprehension of absconding witnesses), subsection (3) is omitted.

Criminal Justice Act 1925 (c. 86)

In section 49 of the Criminal Justice Act 1925 (interpretation, etc), subsection (2) is omitted.

Children and Young Persons Act 1933 (c. 12)

In section 42 of the Children and Young Persons Act 1933 (extension of power to take deposition of child or young person), in subsection (2)(a), for "committed" in both places there is substituted "sent"."
	Page 212, line 27, at end insert—

"Criminal Justice Act 1948 (c. 58)

(1) The Criminal Justice Act 1948 is amended as follows.
	(2) In section 27 (remand and committal of persons aged 17 to 20), in subsection (1), for "commits him for trial or" there is substituted "sends him to the Crown Court for trial or commits him there for".
	(3) In section 41 (evidence by certificate), subsection (5A) is omitted.
	(4) In section 80 (interpretation), the definition of "Court of summary jurisdiction" is omitted.

Prison Act 1952 (c. 52)

Until their repeal by (respectively) section 59 of, and paragraph 10(a)(ii) of Schedule 7 to, the Criminal Justice and Court Services Act 2000, paragraph (a) of subsection (1), and paragraphs (b) and (c) of subsection (2), of section 43 of the Prison Act 1952 (remand centres, detention centres and youth custody centres) are to have effect as if references to being committed for trial were references to being sent for trial.

Geneva Conventions Act 1957(c. 52)

In section 5 of the Geneva Conventions Act 1957 (reduction of sentence and custody of protected persons)—
	(a) in subsection (1), for "committal" there is substituted "having been sent",
	(b) in subsection (2), for "committal", where it first appears, there is substituted "having been sent".

Backing of Warrants (Republic of Ireland) Act 1965 (c. 45)

In paragraph 4 of the Schedule to the Backing of Warrants (Republic of Ireland) Act 1965 (supplementary procedures as to proceedings under section 2)—
	(a) the words "and section 2 of the Poor Prisoners Defence Act 1930 (legal aid before examining justices)" are omitted, and
	(b) for "it had determined not to commit for trial" there is substituted "the offence were to be dealt with summarily and the court had dismissed the information".

Criminal Procedure (Attendance of Witnesses) Act 1965 (c. 69)

In section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (issue of witness summons on application to Crown Court)—
	(a) for subsection (4) there is substituted—
	"(4) Where a person has been sent for trial for any offence to which the proceedings concerned relate, an application must be made as soon as is reasonably practicable after service on that person, in pursuance of regulations made under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998, of the documents relevant to that offence.", and.
	(b) subsection (5) is omitted."
	Page 213, line 7, at end insert—

"Bail Act 1976 (c. 63)

(1) The Bail Act 1976 is amended as follows.
	(2) In section 3 (general provisions)—
	(a) in subsection (8)—
	(i) for "committed" there is substituted "sent", and
	(ii) after "for trial or" there is inserted "committed him on bail to the Crown Court", and
	(b) subsections (8A) and (8B), and the subsection (10) inserted by paragraph 12(b) of Schedule 9 to the Criminal Justice and Public Order Act 1994 (c. 33), are omitted.
	(3) In section 5 (supplementary provisions about decisions on bail)—
	(a) in subsection (6)(a), for "committing" there is substituted "sending", and
	(b) in subsection (6A)(a)—
	(i) for "any" there is substituted "either", and
	(ii) sub-paragraph (i) is omitted.
	(4) In section 6 (offence of absconding by person released on bail), in subsection (6)(b), for "commits" there is substituted "sends".
	(5) In section 9 (offence of agreeing to indemnify sureties in criminal proceedings), in subsection (3)(b), for "commits" there is substituted "sends"."
	Page 213, line 15, at end insert—

"Customs and Excise Management Act 1979 (c. 2)

In section 147 of the Customs and Excise Management Act 1979 (proceedings for offences), subsection (2) is omitted."
	Page 213, line 17, at end insert—
	"( ) In section 2 (jurisdiction to deal with charges)—
	(a) in subsection (3), for "as examining justices over" there is substituted "under sections 51 and 51A of the Crime and Disorder Act 1998 ("the sending provisions") in respect of",
	(b) in subsection (4), for "as examining justices" there is substituted "under the sending provisions", and
	(c) in subsection (5), for "as examining justices" there is substituted "under the sending provisions"."
	Page 213, line 29, at end insert—
	"( ) In section 128 (remand in custody or on bail)—
	(a) in subsection (1)(b), the words "inquiring into or" are omitted,
	(b) in subsection (1A)(a)—
	(i) "5," is omitted, and
	(ii) for "or 18(4)" there is substituted ", 18(4) or 24C",
	(c) in subsection (3A)—
	(i) "5," is omitted, and
	(ii) for "or 18(4)" there is substituted ", 18(4) or 24C",
	(d) in subsection (3C)(a)—
	(i) "5," is omitted, and
	(ii) for "or 18(4)" there is substituted ", 18(4) or 24C", and
	(e) in subsection (3E)(a)—
	(i) "5," is omitted, and
	(ii) for "or 18(4)" there is substituted ", 18(4) or 24C".
	( ) In section 129 (further remand), in subsection (4)—
	(a) for "commits a person" there is substituted "sends a person to the Crown Court", and
	(b) for "committed" there is substituted "sent".
	( ) In section 130 (transfer of remand hearings), in subsection (1)—
	(a) "5," is omitted, and
	(b) for "or 18(4)" there is substituted ", 18(4) or 24C".
	( ) In section 145 (rules: supplementary provisions), in subsection (1), paragraph (f) is omitted."
	Page 213, line 33, at end insert—
	"( ) In Schedule 3 (corporations)—
	(a) in paragraph 2, sub-paragraph (a) is omitted,
	(b) in paragraph 6, for "inquiry into, and trial of," there is substituted "trial of".
	( ) In Schedule 5 (transfer of remand hearings)—
	(a) paragraph 2 is omitted, and
	(b) in paragraph 5, for "5, 10 or 18(4)" there is substituted "10, 17C, 18(4) or 24C"."
	Page 213, line 33, at end insert—

"Criminal Attempts Act 1981 (c. 47)

In section 2 of the Criminal Attempts Act 1981 (application of procedures and other provisions to offences under section 1), in subsection (2)(g), the words "or committed for trial" are omitted.

Contempt of Court Act 1981 (c. 49)

In section 4 of the Contempt of Court Act 1981 (contemporary reports of proceedings), in subsection (3), for paragraph (b) there is substituted—
	"(b) in the case of a report of allocation or sending proceedings of which publication is permitted by virtue only of subsection (6) of section 52A of the Crime and Disorder Act 1998 ("the 1998 Act"), if published as soon as practicable after publication is so permitted;
	(c) in the case of a report of an application of which publication is permitted by virtue only of sub-paragraph (5) or (7) of paragraph 3 of Schedule 3 to the 1998 Act, if published as soon as practicable after publication is so permitted.""
	Page 214, line 28, at end insert—

"Mental Health Act 1983 (c. 20)

(1) The Mental Health Act 1983 is amended as follows.
	(2) In section 52 (further provisions as to persons remanded by magistrates' courts)—
	(a) in subsection (2), for "committed" there is substituted "sent",
	(b) in subsection (5), for "committed" there is substituted "sent", and
	(c) in subsection (6), for "committed" there is substituted "sent"."
	Page 214, line 30, at end insert—
	"( ) In section 62 (intimate samples), in subsection (10)—
	(a) sub-paragraph (i) of paragraph (a) is omitted, and
	(b) in paragraph (aa), for sub-paragraphs (i) and (ii) there is substituted "paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (applications for dismissal); and"."
	Page 215, line 4, at end insert—
	"( ) In section 21 (interpretation), in subsection (6)(b), for "committed" there is substituted "sent"."
	Page 215, line 42, at end insert—

"Coroners Act 1988 (c. 13)

(1) The Coroners Act 1988 is amended as follows.
	(2) In section 16 (adjournment of inquest in event of criminal proceedings)—
	(a) in subsection (1)(b), for "charged before examining justices with" there is substituted "sent for trial for", and
	(b) for subsection (8) there is substituted—
	"(8) In this section, the "relevant criminal proceedings" means the proceedings—
	(a) before a magistrates' court to determine whether the person charged is to be sent to the Crown Court for trial; or
	(b) before any court to which that person is sent for trial."
	(3) In section 17 (provisions supplementary to section 16)—
	(a) in subsection (2), for "committed" there is substituted "sent", and
	(b) in subsection (3)(b), for "committed" there is substituted "sent"."
	Page 215, line 44, at end insert—
	"( ) In section 23 (first-hand hearsay), subsection (5) is omitted.
	( ) In section 24 (business etc documents), subsection (5) is omitted.
	( ) In section 26 (statements in certain documents), the paragraph beginning "This section shall not apply" is omitted.
	( ) In section 27 (proof of statements contained in documents), the paragraph beginning "This section shall not apply" is omitted."
	Page 216, line 7, at end insert—

"Road Traffic Offenders Act 1988 (c. 53)

(1) The Road Traffic Offenders Act 1988 is amended as follows.
	(2) In section 11 (evidence by certificate as to driver, user or owner), subsection (3A) is omitted.
	(3) In section 13 (admissibility of records as evidence), subsection (7) is omitted.
	(4) In section 16 (documentary evidence as to specimens), subsection (6A) is omitted.
	(5) In section 20 (speeding offences etc), subsection (8A) is omitted."
	Page 216, line 42, at end insert—
	"( ) In section 21 (common law rules as to disclosure), in subsection (3), for paragraphs (b) and (c) there is substituted—
	"(b) the accused is sent for trial (where this Part applies by virtue of section 1(2)(cc)),"
	Page 217, line 14, at end insert—
	"( ) in subsection (3), after "51" there is inserted "or 51A","
	Page 218, line 9, at end insert—
	"In paragraph 4 of Schedule 3 (power of justice to take depositions etc), in sub-paragraph (12), for the definition of "the relevant date" there is substituted—
	""the relevant date" means the expiry of the period referred to in paragraph 1(1) above."
	Page 218, line 18, at end insert—
	"( ) In section 8 (power and duty to remit young offenders to youth courts for sentence), in subsection (2), for paragraph (a) there is substituted—
	"(a) if the offender was sent to the Crown Court for trial under section 51 or 51A of the Crime and Disorder Act 1998, to a youth court acting for the place where he was sent to the Crown Court for trial;".
	( ) In section 89 (restriction on imposing imprisonment), in subsection (2)—
	(a) in paragraph (b), the words "trial or" are omitted, and
	(b) in paragraph (c), after "51" there is inserted "or 51A".
	( ) In section 140 (enforcement of fines etc), in subsection (1)(b)—
	(a) the words "was committed to the Crown Court to be tried or dealt with or by which he" are omitted, and
	(b) after "51" there is inserted "or 51A"."
	Page 218, line 23, at end insert—
	"( ) In Schedule 11, paragraph 9 is omitted."
	On Question, amendments agreed to.
	[Amendment No. 69 had been re-tabled as Amendment No. 143B.]

Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be adjourned until after Starred Questions.

Moved accordingly, and, on Question, Motion agreed to.

Lord Bassam of Brighton: My Lords, I beg to move that the House do now adjourn during pleasure.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 1.23 to 3 p.m.]

Hereditary Peers' By-election

The Clerk of the Parliaments: My Lords, with the leave of the House, I am now able to announce the result of the by-election to elect a hereditary Peer in accordance with Standing Order 10, following the death of Lord Milner of Leeds.
	Three Lords completed valid ballot papers. A paper setting out the complete results is being made available in the Printed Paper Office and the Library. That paper gives the number of votes cast for each candidate.
	The successful candidate was Lord Grantchester.

House of Lords: Access

Lord Addington: asked the Chairman of Committees:
	What steps are being taken to improve access to all areas of the House of Lords for Members and staff with mobility problems.

Lord Brabazon of Tara: My Lords, the House of Lords is committed to improving access for those with mobility problems and to meeting all its obligations under the Disability Discrimination Act 1995. To that end, a survey of the Palace for access and facilities is under way and the report is due in January 2004. Its recommendations will be considered by the Administration and Works Committee and by other bodies, including English Heritage.

Lord Addington: My Lords, while I thank the noble Lord for that Answer, will he tell us what consideration has been given to the large number of small flights of steps that are part of this building, and to those who have the sort of difficulty in moving that means that they need a stick or crutches—either permanently or temporarily? If those people are not taken into account, we cannot really say that we have a uniform access plan.

Lord Brabazon of Tara: My Lords, I hope that, where possible, ramps have been installed that should assist those with mobility problems. I know that there was a recent case of access difficulties to the staff restaurant. A temporary ramp was installed, which is now being or will shortly be replaced by a permanent one.

Lord Astor of Hever: My Lords, we on these Benches want as much as possible to be done for those with mobility problems. What practical constraints are imposed on the House authorities because this building is listed Grade I?

Lord Brabazon of Tara: My Lords, there are constraints. For example, it was at one time proposed during the restoration of Nos. 6 to 7 Old Palace Yard to install a lift. That was not allowed by English Heritage. So there are constraints as a result of the listing of this building.

Lord Campbell of Croy: My Lords, has the Chairman of Committees taken into account that ramps are helpful to wheelchairs, but not to calipers and sticks, which require a succession of shallow steps? I declare an obvious interest.

Lord Brabazon of Tara: My Lords, we all admire the way the noble Lord manages to get about. I of course take his point on board. I should hope, if noble Lords have problems or suggestions, that they would not wait for a Starred Question to be tabled but would come to see me about them directly; we will always try to do our best.

Baroness Masham of Ilton: My Lords, what progress is being made in respect of our lovely chapel, St Mary Undercroft?

Lord Brabazon of Tara: My Lords, provision of a lift to enable those with mobility problems to have access to the crypt was included in the most recent summer works programme. However, English Heritage asked for the proposed access point to be changed. After investigation by the designers, revised details for listed building consultation were provided to Westminster City Council. The agreed period for its decision expires on 9th December. We understand that agreement is probable and we hope to proceed with installation of a lift soon thereafter.

Lord Carter: My Lords, will the Chairman of Committees confirm that when the refurbishment of Fielden House is complete it will be fully accessible?

Lord Brabazon of Tara: Yes, my Lords, I am pleased to give that assurance.

Lord Imbert: My Lords, could other able-bodied Members of your Lordships' House be asked politely not to park in the disabled parking space near Peers' Entrance, because that prevents a disabled Member from coming here?
	I have another point that may sound trivial but is even more serious. Could able-bodied Members be asked not to use the disabled toilets on any floor? A disabled person has no choice and, if the toilet is occupied, must go up or down a floor. I declare an interest in that, having gone down a floor only to find that toilet also occupied by an able-bodied Member of your Lordships' House.

Lord Brabazon of Tara: My Lords, I have great sympathy with the noble Lord and hope that no noble Lord who does not need to would use the disabled toilets nor any of the disabled parking places. If there is a requirement for more disabled parking places, they can of course be provided.

Lord Tebbit: My Lords, may I make three brief points? First, English Heritage is too frequently used as an excuse for people to avoid taking on their responsibilities. Secondly, lifts need not be ugly and distasteful; they can be installed well and unobtrusively. Thirdly, there are stages at which it becomes absurd to provide full access for disabled people—let us take the clock tower as an extreme case. We must not destroy what people value in this building in an artificial effort to make everywhere absolutely accessible for a minority.

Lord Brabazon of Tara: My Lords, on the latter point, we could not possibly make everywhere accessible, for the reasons given by the noble Lord. On the point about English Heritage, I fear that the House has an obligation as a major listed building to take account of what it says.

Lord Avebury: My Lords, will the Chairman of Committees tell us what arrangements are made for access by disabled people to the galleries of your Lordships' House?

Lord Brabazon of Tara: My Lords, I fear that I am not entirely sure of the answer to that; I shall have to investigate and write to the noble Lord.

Lord Ackner: My Lords, six months ago, I would not have thought that I would have been involved in asking questions on this subject. First, I should like to say how extraordinarily helpful are the staff to all those who have a disability, and how immensely helpful are one's colleagues. However, there is one area in which access could be improved: the steps up to the lift by what were once the Lord Chancellor's premises. The steps there could support a ramp, which some people could use—at present, me; but I expect that soon that will not be possible.

Lord Brabazon of Tara: My Lords, I am sure that the whole House would join the noble and learned Lord in thanking our excellent staff for all that they do to assist all of us—not just those of us with mobility problems. As for the particular points he raised, I shall have to look into the matter; I shall do so after the end of this Question.

Baroness Darcy de Knayth: My Lords, does the Lord Chairman agree that huge progress has been made, and of a very high standard, regarding access for wheelchair users? We need to think more about the ambulant disabled getting to places as quickly as possible, given the distances to be covered. Thanks to the electric wheelchairs that we are now allowed, we can cover the distance in the right amount of time.
	Secondly, are there any plans for sorting out any problems that the visually impaired may have for getting around this place?

Lord Brabazon of Tara: My Lords, I thank the noble Baroness; I agree that a lot of progress has been made. As far as visually impaired people are concerned, there was a proposal for a kind of colour coding, but it would not be a practical solution. Rather than providing special facilities it is much easier if, every now and again—after all it is a fairly rare event—people are guided by members of the staff, who are always willing to do so.

Asylum: Independent Documentation Centre

Lord Hylton: asked Her Majesty's Government:
	Whether they intend to establish an independent documentation centre for countries of origin to provide objective and up-to-date information in relation to asylum applications.

Lord Bassam of Brighton: My Lords, there are no plans to establish an independent documentation centre. We recently established the independent advisory panel on country information under the Nationality, Immigration and Asylum Act 2002 to make recommendations on the country information material produced by the Home Office and help to ensure that it is as accurate, objective and up to date as possible. The panel is chaired by Professor Stephen Castles of Oxford University and held its first meeting on 2nd September this year.

Lord Hylton: My Lords, I thank the noble Lord for his reply. Does he accept that an advisory panel is no substitute for what I am asking for? Is he aware that a report in September of the semi-official Immigration Advisory Service showed that the Home Office is relying on flawed and out-of-date information about countries of origin, resulting in poor quality of first decisions? Will the Government therefore study the independent system that has been functioning in Canada for several years in order to produce something similar here on which we can rely with confidence?

Lord Bassam of Brighton: My Lords, I cannot agree with the noble Lord's assertion. The IAS report was published on the day that the advisory panel held its first meeting. The Country Information and Policy Unit is closely considering the issues raised in that report and, where appropriate, amendments have been incorporated into the country reports to be published at the end of October. Not all the comments in the report were unfavourable, and some, I suggest, were a matter of subjective opinion.
	As to the Canadian model, which I know the noble Lord is very interested in, it is interesting that the Canadians are exploring the options for establishing an in-house operation very much along the lines of the CIPU because of its greater ability to access what one might describe as "focused information" from government sources. But we are well aware of its operation and obviously we pay close attention to it and the way in which it works.

Lord Dholakia: My Lords, may I ask the Minister whether information collected by UNHCR, Amnesty International and other non-governmental organisations form part of the information that is being used by the independent advisory panel? Is it possible to put that information in the Library of the House so that Members are aware how decisions on asylum applications are reached?

Lord Bassam of Brighton: My Lords, we of course take great cognisance of the UNHCR's report. It no doubt provides important intelligence on which the Country Information and Policy Unit bases and compiles its reports. It is worth reminding the noble Lord that the reports are not there to determine the outcome of individual cases but to provide background and independent advice and support so that general decisions can be made. That is the function and purpose of the work that the Country Information and Policy Unit undertakes. It is now held accountable, in a sense, through the advisory committee, which I am sure will play a very important and independent role.

Lord Roberts of Conwy: My Lords, are the Government contemplating any further steps to ensure that those processing asylum claims have ready access to reliable, impartial and objective information about applicants' countries of origin, as recommended in the Home Office report published in September?

Lord Bassam of Brighton: My Lords, we do not have any immediate plans, but of course this is constantly kept under review. No doubt the advisory panel will have views to express on the quality and origin of the information. It has a vital role in holding the policy unit and its work to account.

Lord Avebury: My Lords, does the Minister agree that one of the problems with the Country Information Policy Unit is that it only updates its reports once every six months and is often late with the revisions? Where a country such as Zimbabwe is rapidly deteriorating, the CIPU reports are miles out of date. Therefore, the independent adjudicators do not have access to information which may be material to particular applications.

Lord Bassam of Brighton: My Lords, it is the case that information is posted every six months. However, the unit updates that with bulletins in the intervening period, which are made available on the website. I was flicking through my papers in order to give the noble Lord the website's reference, but I have failed to find it. It is there, however—those bulletins are regularly produced and the information is updated. In addition to the background updates, information regarding any changes that reflect what is happening in a particular country is readily available.

The Earl of Sandwich: My Lords, does the Minister agree that in some countries, such as Afghanistan, some regions are safe and other regions are not safe? Can he confirm that the information obtained through the unit he referred to takes account of those regional variations?

Lord Bassam of Brighton: My Lords, I am sure that the unit pays very close attention to changes that take place in each country. It will no doubt want to ensure that the quality of that information is of the highest order. I am confident, too, that it will constantly update it and take account of new developments.

Playing Fields: Planning Applications

Lord Corbett of Castle Vale: asked Her Majesty's Government:
	How many planning applications relating to playing fields there were between April 2001 and March 2002; and what were the outcomes.

Lord McIntosh of Haringey: My Lords, there were 985 planning applications relating to playing fields made between April 2001 and March 2002. Of these, 695 have been approved, 643 of them with Sport England's agreement. As a result of these applications, 450 brand-new sporting facilities, at a value of £270 million, will be built across all regions of the country. Some 161 applications have been rejected or withdrawn and 129 have yet to be decided.

Lord Corbett of Castle Vale: My Lords, I thank the Minister for that excellent news. Can he confirm that 91 per cent of approved applications benefited sport or left sport unaffected, often turning fields used for 90 minutes a week by 22 men kicking a football around into all-weather pitches used up to 17 hours a day? Is he aware that in the West Midlands alone, in the year to last March, some 69 projects, worth around £39 million, have offered better sports facilities, mainly to those in deprived areas?

Lord McIntosh of Haringey: My Lords, I can confirm my noble friend's figures because I am glad to say he has been consulting the excellent document, Planning for Play, which was produced by the Department for Culture, Media and Sport in July of this year. He will find that the figures he has quoted are entirely correct.
	Of course, the definition of a planning application is a little odd for this purpose. I have a playing field opposite my house where there was a planning application to replace run-down huts with a brand new pavilion. If, as I think, that took a small amount of playing-field land, that is called the disposal of a playing field when it is clearly to the benefit of the school and the community.

Lord Skelmersdale: My Lords, that is all very well, but many of these applications are for school playing grounds. Can the Minister explain how the proposal of the Department for Education and Skills that children at school should play sport for two hours a week is to be realised?

Lord McIntosh of Haringey: My Lords, the better use of playing fields, which is possible as a result of the statistics I have been given, is only part of the story. In addition to that, the New Opportunities Fund has allocated £581 million in England and £490 million in Wales to physical education and school sport, which I think was the wider subject of the noble Lord's question. Of course, that includes sports facilities which are available for community use.

Baroness Billingham: My Lords, is it not the case that there is a good deal of genuine, well-intentioned misunderstanding on the whole issue of the sale of playing fields? Things have changed. Only last week we saw on our televisions Mr Iain Duncan Smith playing cricket at the new centre of excellence at Loughborough University. That is a wonderful facility—

Noble Lords: Question!

Baroness Billingham: My Lords, the question is here. Is it not the case that that facility is built on a playing field? It will appear in some statistics as the sale of a playing field, yet it is the provision of a most wonderful updated and upgraded facility. Surely, that will happen with all sports, now that sports are rightly asking for indoor facilities for 12 months of the year.

Lord McIntosh of Haringey: My Lords, that is a very good example. The facility at Loughborough University is built on a slope between two cricket pitches and built entirely without damaging the two pitches. Of course, it is an improvement to sports facilities.

Lord Addington: My Lords, while I am glad to hear that some new sports facilities are being built, will the Minister tell us exactly where the Department of Health fits in, in making assessments about such things as preventive healthcare from the recreational use of open spaces and playing fields? If that does not take place, do the Government agree that it is certainly a hole that should be plugged very quickly?

Lord McIntosh of Haringey: My Lords, I am sorry that the noble Lord, Lord Addington, believes there to be only "some" new facilities. I believe that there is an enormous quantity of improved facilities for playing fields, which is the subject of the Question. In so far as the Department of Health is responsible for playing fields, that is part of the statistics that I have given. If there is any further information that I can give the noble Lord from the Department of Health, I shall try to do so.

Lord Monro of Langholm: My Lords, if all is such sweetness and light as the Minister suggests, why are the National Playing Fields Association and the Central Council for Physical Recreation so critical of what the Government are doing? They seem to be blind to how many playing fields are being lost throughout England and Wales. What consultations has the Minister had with those two bodies, given that he set up a committee to do just that?

Lord McIntosh of Haringey: My Lords, we have had continuous consultation. The Central Council for Physical Recreation has not been critical; it is true that the National Playing Fields Association has been critical, but the noble Lord will find if he inquires that it is now very much in agreement with the policies that we have adopted.

Lord Moynihan: My Lords, will the Minister tell us when an announcement will be made regarding the start and anticipated completion of the Government's "Domesday Book" of sports facilities? What protection is given to stop the sale of university sports grounds within the current planning system?

Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Moynihan, is ingenious in finding questions about the future on which I have no briefing material, and I apologise to him for that. University playing fields are included in the statistics on playing fields that I have been given and which we have published. I am not aware that separate statistics have been given for them.

European Union and NATO

Lord Trefgarne: asked Her Majesty's Government:
	Whether they share United States concerns over the recent European Union defence proposals as they affect NATO.

Baroness Symons of Vernham Dean: My Lords, as I emphasised in answering questions in your Lordships' House last week, Her Majesty's Government will not support any proposals in the European Union that we believe undermine NATO. The United States shares and understands our position very well. A senior US official, Bob Bradtke, said last week:
	"The British will never do anything that might weaken or bypass NATO. There is no more dependable or devoted ally within the Atlantic Alliance".

Lord Trefgarne: My Lords, I am grateful to the Minister for that reply. Why is it that the Americans are so unconvinced by the Government's honeyed words on this matter? Is it not the case that they remain profoundly concerned by what is proposed, and are the Government sure that they will be able to stem the tide against the rest of our European colleagues?

Baroness Symons of Vernham Dean: My Lords, I should like to believe that the noble Lord, Lord Trefgarne, prepared his supplementary before I gave my Answer. The fact is that, in my Answer, I put forward a very strong position from the United States Government. Bob Bradtke used to be the deputy head of the United States mission in London towards the end of the 1990s. I negotiated with him often. He is a real toughie; he is not given to over-egging his pudding, and I believe that he means what he says.

Lord Wallace of Saltaire: My Lords, is the Minister aware that the New York Times described the Pentagon's reaction to the British Government's agreement in Berlin as "paranoid"? If that is an American reaction it does indeed suggest "paranoid", and that the Pentagon was rather overreacting. Does the Minister agree with me that there is a slight danger that the Conservative Party risks becoming more loyal to NATO than some of the senior officials in the Pentagon?

Baroness Symons of Vernham Dean: My Lords, as I indicated to your Lordships last week when I answered this question, I believe that the remarks in question were uttered by Mr Nicholas Burns, who himself said that he had been quoted out of context in his interview with Radio Free Europe.
	As for the noble Lord's point about the Conservative Party, I remind your Lordships of this quote:
	"The common foreign and security policy shall include all questions related to the security of the Union, including the eventual framing of a common defence policy, which might in time lead to a common defence".
	That was signed not by this side of the House but by the then government from the opposite side of the House when they signed the Maastricht Treaty in 1992. Perhaps, on occasion, the collective amnesia on the opposite side of the House really does need rectifying.

Lord Howell of Guildford: My Lords, despite the Minister's reassuring words, is not the problem that is giving cause to renewed concern the fact that Article 1.15 of the draft constitution—although I agree that it is still to be negotiated—reinforces the idea of a separate European defence capability? We know that that is something that the French have always wanted. They are perfectly entitled to it, it is in their interest, and good luck to them. However, now that this new worry has arisen, can we be assured that in the negotiation the United Kingdom will strike out that clause? Will the Minister guarantee that we will resist any signature or commitment to a separate command structure or capability, which the French want and the Minister says that we do not?

Baroness Symons of Vernham Dean: My Lords, we have been over this matter several times. The noble Lord is quite right: we do not want separate operational facilities. We have operational facilities that can operate either through SACEUR and SHAPE, as we discussed last week, or through national headquarters, as the French national headquarters were used for operations in the Congo.
	I remind your Lordships of what the British Prime Minister said only two weeks. He said:
	"Nothing whatever must put at risk our essential defence guarantees within NATO . . . and at the discussion we had last night"—
	on 16th October—
	"I would say the vast majority of people spoke up for European defence but only on the basis that it is fully compatible with NATO . . . France and Germany . . . recognise, in the end, European defence has no future as a competitor to NATO".
	Those are the words of the British Prime Minister two weeks ago. I do not refer to what somebody might have said somewhere in France or what somebody anonymous said somewhere in Germany. I stand by what the British Prime Minister said.

Lord Lea of Crondall: My Lords, would it not be useful to remember that the major criticism that can be made of European countries is that they have not made enough of an effort on defence? In that context, America is already becoming over-stretched in some of its commitments. Whatever the wording of the constitutional treaty, the more that Europe can get together, get its defence up and running and become collectively more able to deal with issues from Macedonia to Iraq, the better.

Baroness Symons of Vernham Dean: Yes, my Lords, that is exactly the point, and it was a point made by the noble Baroness, Lady Thatcher, when she was the Prime Minister of this country. She also pointed out that there were some deficiencies with some of our European partners. We recognise that those deficiencies may still exist. What we are talking about is structured co-operation. Again I quote from the Prime Minister's words, this time of 23rd October, when he said that,
	"any structured co-operation, which we support in principle, has got to be agreed between all 25 of the countries, so it is important that it only goes and develops in a way that is fully consistent with NATO".

Lord Maclennan of Rogart: My Lords—

Lord Craig of Radley: My Lords—

Baroness Amos: My Lords, I think it is the view of the House that they would like to hear from the Cross Benches.

Lord Craig of Radley: My Lords, can I take it from that reply from the Minister a moment ago that there will be no reduction in the defence provision for the United Kingdom forces?

Baroness Symons of Vernham Dean: My Lords, as he knows, the noble and gallant Lord, with his great perspicacity, wandered somewhat wide of the Question. The noble and gallant Lord knows that I am in no position from this Dispatch Box to give him guarantees about future defence funding. I know how passionately he feels about that and, of course, those concerned with making those calculations will read his remarks in Hansard.

Lord Maclennan of Rogart: My Lords, is it not the case that there is less dividing Europe and the United States Administration on military capabilities and headquarters agreements than is sometimes apparent from the injudicious remarks of certain members of the United States Administration who give the impression that they regard other member countries of NATO not so much as independent states but as satellites? Their preference for cherry picking their allies is unhelpful to the development of the common political perception that has been the strength of NATO from the beginning.

Baroness Symons of Vernham Dean: My Lords, let us be fair over this point. The noble Lord referred to what he described as certain injudicious remarks from certain members of the United States Administration. I expect that our friends on the Conservative Benches will be able to point out certain injudicious remarks from some of our key allies in Europe. I have said that I do not think it is sensible for us to dwell on remarks from unattributed sources whether they be in the United States or the European Union. Let us look at what people are willing to put their names to. I have given your Lordships two excellent quotes from key figures in the United States Administration who support the United Kingdom's position on these crucial issues.

Business of the House: Recess Dates

Lord Grocott: My Lords, with the leave of the House I should like to make a Statement about recess dates. To save time, energy and biros, I have arranged for copies of the dates to be put in the Printed Paper Office.
	I wish to deal first with Prorogation. I hope that it will be possible to prorogue no later than Thursday 20th November. The House will understand that it is too soon to be certain and it depends on the progress of business in both Houses, but that looks the most likely date from where I am standing at the moment.
	Looking further ahead, last Thursday my right honourable friend the Leader of the House of Commons, Peter Hain, made a Statement about Commons recess dates. I shall give those dates for reasons that will become apparent. Some noble Lords have already picked them up. The dates that my right honourable friend gave are as follows. For the Christmas Recess the House will rise on Thursday 18th December and return on Monday 5th January. In February the House will rise on Thursday 12th February and return on Monday 23rd February. At Easter the House will rise on Thursday 8th April and return on Monday 19th April. At Whitsun the House will rise on Thursday 27th May and return on Monday 7th June. For the Summer Recess the House will rise on Thursday 22nd July and return on Tuesday 7th September. For the Conference Recess, as it is called, the House will rise on Thursday 16th September and return on Monday 11th October.
	As I said, those are Commons dates. However, I can tell the House that, subject as ever to the help and assistance of everyone in this House, it is my intention that this House should match those dates. That is as ever subject to the progress of business. I can say more specifically that it will be dependent this year on the number of Bills that we are able to agree should be dealt with in Grand Committee.
	On the specific question of the September sitting which a number of noble Lords have raised, it will be for the House to decide, on a Motion that will be tabled early in the New Session, whether it wishes to match the Commons in the experiment that we started this year and which will have to be considered for next year. That will be a decision for the House to take.
	Everyone will be aware that someone in my position is slightly nervous at announcing recess dates up to summer of next year and beyond. As in so many aspects, I have many aspirations but not always the power to deliver them. If we are able to stick to those dates, it is helpful not only to your Lordships but, perhaps in some ways more importantly, it is helpful to the many people who work for us so effectively in this House to enable them to plan their holiday dates. I hope that those dates are helpful.

Lord Cope of Berkeley: My Lords, I am sure the whole House will be grateful to the Captain of the Gentlemen-at-Arms for the early announcement of the proposed recess dates and for agreeing to a debate early in the new Session on the July to September arrangements.
	It will, of course, be relevant to that debate if I point out that 22nd July is not mid-July, which was the phrase used in the original arrangements. Thursday 15th or Friday 16th July would be more like the middle of July, but that is an arithmetic point.
	As regards Grand Committees, will the noble Lord the Chief Whip acknowledge that we have this Session more than delivered our part of the working practices agreement but the other half of that agreement—the 10 o'clock convention, and the seven o'clock convention on Thursdays—has been repeatedly and flagrantly breached?
	In principle I see little reason for the two Houses to sit on the same days all the time any more than we sit at the same hours, which we certainly do not at the moment. Does the noble Lord the Chief Whip recognise that if the recess dates that he has announced are to be delivered it is essential that the Government introduce a lighter and better balanced legislative programme as between the two Houses?

Lord Roper: My Lords, I also thank the Captain of the Gentlemen-at-Arms for having given us this information. Like the noble Lord, Lord Cope, I am grateful that we shall have a very early debate in order to remove any doubt about our September sitting.
	I stress that although the noble Lord the Chief Whip referred to our recess dates matching those of the House of Commons, the pattern of business between the two Houses is not the same. We tend to have a lighter programme of business at the beginning of the Session and a heavier one at the end, whereas with the Commons it is the other way round. I hope that that will also be taken into account as regards some mild variations in the programme. For example, I believe some consider that 5th January is rather early to return after Christmas.

Lord Grocott: My Lords, the pattern of business as between the two Houses is well known and recognised. All governments try to balance it as far as they are able, knowing that we have a heavier programme later in the Session whereas the Commons have a heavier programme at the beginning of the Session. I do not want to sound too Stalinist about this; I am not saying that there should be precise dates governing the two Houses. However, in my view a bicameral system works better when the two Houses sit broadly at the same time and it has great advantages obviously when one is trying to resolve difficulties at the end of a Session.
	The noble Lord, Lord Cope, referred to the July sitting. As I said, that is a matter for the House. It will be for the House to decide whether that is the right way of doing it and what the appropriate date should be. The noble Lord has once again said that I have repeatedly breached the 10 o'clock rule. Believe me, I should love not to breach the 10 o'clock rule. I reject the suggestion that there is something unique about this Session in terms of the Government's legislative programme. I shall not bore the House by reading out the amount of legislation which the government of the noble Baroness, Lady Thatcher, introduced in the early 1980s, but the number of Bills introduced per year regularly amounted to 40 or 50 as opposed to about 30 in the present Session.
	The noble Lord mentioned a bargain as regards Grand Committees. I do not think that it is quite right to talk about a bargain as between Grand Committees and a 10 o'clock finish. Inevitably in the first year of the introduction of the new procedures it is a case of, "suck it and see". We need to see how it works out. No one could be absolutely precise about the extent to which a 10 o'clock finish would impact on the speed of progress of legislation. The truth is that it has slowed that progress rather more than some of us might have anticipated. That is a matter for the House.
	It is my fervent belief that committees are the appropriate forum to consider the Committee stage of a Bill. They enable far more time to be given to a Bill with far more effective and detailed consideration. That is a debate for another day, however.

Lord Davies of Coity: My Lords, the dates have been given to us well in advance. We all welcome that but we also know that, if the progress of business is not such, they may be jeopardised to some extent. We know that the 10 o'clock rule is being broken. I was one of those here a week last Tuesday until five o'clock in the morning, and I do not care to do that very much. We all have a responsibility to conduct our business in the most rational way possible. I ask my noble friend, in conjunction with the usual channels, to consider very seriously putting many more Bills into Grand Committee.

Lord Grocott: My Lords, I wholeheartedly agree with my noble friend. Like him, I do not like sitting late at night. However, there is a myth abroad that, somehow or other, sitting late at night and indeterminate rising times and recess dates provide for more effective scrutiny of legislation. I do not think that at all. Legislation is best scrutinised in sensible hours, and that is to the advantage of both the Government and the Opposition.

Lord Renton: My Lords, given what the noble Lord has just said will he bear in mind that, if we are to sit sensible hours on not too many days of each year, we must be sure that the legislation is not too lengthy or detailed? I shall give him an example of what should be avoided but which we have before us this Session. We had to spend 11 days on the Criminal Justice Bill. When it reached us, it consisted of 374 pages. In Committee, the Government added nearly 30 more, and it looks as though they are adding another 20 pages on Report. Legislation should be carefully considered and prepared before it is submitted to either House of Parliament. The present method of presenting legislation to the House really cannot continue. The Government must reconsider the matter.

Lord Grocott: My Lords, I am obviously strongly in favour of legislation being brought to this or the other place in as complete a form as possible. However, changes are frequently made during the passage of legislation through the House. The Committee stage of the Criminal Justice Bill is yet another classic example. I sat through many of its sittings. Not being a lawyer, I will not pretend to have understood every single line of it, but frequently there was precisely the kind of exchange throughout the Chamber that would have been made more effectively in Grand Committee. Certainly, the numbers present at many of the debates suggest that they could have been properly accommodated in Grand Committee. The House needs to consider those options.

Viscount Bledisloe: My Lords, when the noble Lord in future makes comparisons between the amount of legislation that we consider nowadays and that which we considered in the past, would he think it more suitable to do it by clauses, pages or tonnes rather than by number of Bills? If he counts the Criminal Justice Bill as one Bill, we could really do with one Bill per Session. If he did a weight, page or clause comparison, I suspect that the figures would be less helpful to him than those that he gave a moment ago.

Lord Grocott: My Lords, I did not have the pleasure of taking part in the House of Lords reform Bill, but I understand that it was a six-clause Bill. The relationship between clauses and time is not always precise.

Baroness O'Cathain: My Lords, will the noble Lord tell us whether there is a real move to put more and more Bills in Grand Committee? People who have taken part in sittings in Grand Committee should be consulted. Having taken part in them, there is no question that we feel—I feel, anyway—that the problem is that we go through the whole Bill in Grand Committee, but when it comes back to the Floor of the House on Report the debate is full of Second Reading speeches and everything is gone through again. Grand Committee is not actually the best way of dealing with the legislation.
	Very often, people who happen to come to this place when a Bill is being dealt with on the Floor of the House suddenly realise that they have something to add to the discussion, whereas they would not normally think about going upstairs or into the Moses Room for a Grand Committee. By putting too many Bills into Grand Committee, we are probably not scrutinising them as adequately or perfectly as we did previously.

Lord Grocott: My Lords, with great respect, one cannot construct the procedures of half of the legislature of one of the oldest parliamentary democracies in the world on the basis of whether someone happens to pop in and is interested in the debate, or may pop out again if he is not. It is the duty of people who are here to take note of what is being debated on a particular day—a duty assiduously followed by the vast majority. Frankly, whether that debate takes place here or in Grand Committee should not be the determining factor on whether they contribute. It is the responsibility of us all to decide on which Bills we want to contribute and on which we do not.

Lord Wedderburn of Charlton: My Lords, does my noble friend realise that, extraordinary though it is that I should agree with the noble Baroness, I totally agree with her? I recommend that he sits through the entire sittings of some Grand Committees and sees how, by sending Bills there more and more, the executive are digging their own grave. In the end, Grand Committees make Third Reading the really effective debate.

Lord Grocott: My Lords, it does not surprise me at all that my noble friend agrees with the Opposition because, on quite a number of occasions, he has been joining them in the Lobbies. The debates about where the Committee stage of Bills should be held will go on at some length, no doubt. However, what is unarguable and undebatable is that a Committee stage held in a committee certainly has far more capacity in terms of time, as my noble friend knows well enough, than the Floor of the House where time is precious.

Lord Brooke of Sutton Mandeville: My Lords, does the noble Lord accept the functional point that there might be greater enthusiasm for Grand Committee if there were, by comparison with the Chamber, better physical facilities for taking paper into them? In the Chamber, there is considerable flexibility in being able to have one's papers beside one.

Lord Grocott: My Lords, I agree wholeheartedly.

Criminal Justice Bill

Further consideration of amendments on Report resumed.
	Clause 47 [Meaning of "terminating ruling"]:

Lord Goldsmith: moved Amendment No. 70:
	Leave out Clause 47.

Lord Goldsmith: My Lords, this, the first large group of government and opposition amendments, is broadly concerned with the prosecution rights of appeal listed in the Bill. Since the groupings were set out, I have come to understand that the Opposition desire to ungroup Amendments Nos. 70A and 96 and take them as two separate groups. I say that for the convenience of the House. I shall explain the government amendments first and then deal with the opposition amendments.
	As the House is aware, the provisions are based on a Law Commission report and enjoy widespread support. I mentioned in Committee that we planned to refine them. The government amendments discharge my earlier commitment. There are five main points of interest.
	First, the Bill as currently drafted grants the prosecution a right of appeal against two kinds of judges' rulings. There are those rulings which formally bring the trial to an end, and those rulings which do not formally terminate the trial, but are so fatal to the prosecution case that the prosecution feels bound to offer no further evidence. In the Bill, the two types of rulings are referred to respectively as "terminating rulings" and "certain other rulings".
	There has been confusion among practitioners over the meaning of the clause on "certain other rulings"—the impression having been gained that it covered rulings which were not fatal to the prosecution case. As a result, we felt that those two separate sets of provisions could benefit from some improvement in order to reduce complexity and confusion. The first purpose of the amendments, therefore, is simply to combine the two separate clauses on what I will describe as formally and de facto terminating rulings into a single route of appeal. That has resulted in greater clarity and simplicity. I commend Parliamentary Counsel's work and I hope that noble Lords will agree that the result is much better. For the convenience of the House, we have placed since yesterday in the Printed Paper Office a version of this section as it would appear if the Government amendments were accepted, so that it can be seen as a whole. That has been sent to certain noble Lords in advance.
	Secondly, we have replaced the judge's obligation to grant an adjournment at the beginning of the appeal proceedings with a discretion to do so. As currently drafted, the Bill enables the prosecution to appeal against a ruling immediately or to ask for an adjournment to consider whether to appeal. Under the present drafting of the Bill, the judge is required to grant the adjournment on the grounds that, if the judge declined to adjourn the proceedings, the prosecution would have no time to consider whether to appeal and would exercise without proper forethought the power which it has to appeal immediately. Our concern was to reduce the potential for possible unmeritorious appeals lodged in the heat of the moment.
	This matter was much discussed in Committee. Noble Lords impressed upon us that the judge's discretion should not be fettered in such a way. They also suggested that there might be exceptional circumstances where an adjournment would be inappropriate and that the factors which might give rise to the need for an adjournment might only be known to the judge. Having considered that, and while emphasising that the only purpose in imposing that obligation was to ensure that there was time for reflection so as to keep down unmeritorious appeals, we have accepted the points made and therefore propose to leave the question of whether there should be an adjournment to the discretion of the judges. I hope that noble Lords who spoke in Committee for discretion will be pleased with our stance. I also make clear in passing the Government's intention that the granting of adjournments under this provision is likely to be subject to Rules of Court or such other guidance as may be necessary. That will be for the appropriate rules authorities to set down.
	The third point of interest relates to rulings of no case to answer. Where the prosecution appeals against a ruling of no case to answer, we propose to allow it to nominate such earlier rulings as it specifies for the Court of Appeal to review at the same time. I shall say more about the matter later when I consider the Opposition amendments.
	Fourthly, the government amendments deal with the matter of timing. The intention underlying the Bill in its original form was to restrict the prosecutor's right of appeal against formally or de facto terminating rulings to those rulings made before the end of the prosecution evidence. We had been intending—I signalled as much—to amend the Bill to extend that time limit to cover rulings made at "half time", but before the opening of the defence case. After further consideration, we have reached the conclusion that that would not go far enough and the amendments will therefore enable the prosecution to appeal against a terminating or de facto ruling which is made up to the end of the trial, but not after the judge's summing up has begun.
	The reason for that is practical. It had been considered that judges' rulings made after half time would be so infrequent as to give no cause for concern. That matter had been considered before. The only possibility of such a ruling identified in the Law Commission report on prosecution appeals was a ruling on disclosure. However, there has been a recent case where a decision to stop the trial was made by the judge after the conclusion of the defence evidence. It is clear, therefore, that the prosecution right of appeal needs to cover rulings made late in the trial. I anticipate that those would be the exception.
	Fifthly, we have amended Clause 53, which sets out the options the Court of Appeal has when it determines the appeal, to limit the clause to terminating rulings. We have also tightened up the drafting of the clause in response to comments made by noble Lords in Committee. The overall effect of these government amendments will be to make the existing provisions on prosecution appeals more practically effective and clearer to follow and implement.
	I turn now to the opposition amendments, doing my best not to touch on those which have been ungrouped. I shall indicate briefly the Government's position on those amendments. Noble Lords will then speak to them with that in mind. Amendments Nos. 72, 73, 79 and 81 appear to have the aim of giving the defence the equivalent of the prosecution right of appeal against a de facto terminating ruling. As I have explained, the Bill presently gives the prosecution a right of appeal against a ruling which is formally or de facto terminating. Although the prosecutor can theoretically appeal against any ruling as a de facto terminating ruling, the requirement is to accept an acquittal in the event of losing the appeal. That means that the prosecution can appeal only against rulings which are fatal to the prosecution case. Those rights of appeal had the support of the Law Commission, which stated that introducing them was largely equivalent to a defence right of appeal against conviction.
	There is no direct equivalent for the defence of a de facto terminating ruling. There is no ruling that a judge is capable of making which would end the trial in the prosecution's favour with the defendant's conviction. So the attempt to create the direct equivalent of a prosecution appeal which the amendments envisage is wrong in principle. In practical terms it would be disastrous. Without the sanction of losing the case in the event of losing the appeal, the defence could and would appeal against any ruling made by a judge. Trials would grind to a halt and the criminal justice system would suffer considerable disruption. That is in nobody's interest.
	In this group of amendments I am dealing with prosecution appeals against terminating rulings or de facto terminating rulings. In a later grouping we shall come to the proposed addition of a right to appeal against evidentiary rulings. I wish to keep those two rights of appeal separate in this debate, as do the groupings.

Lord Thomas of Gresford: My Lords, before the noble and learned Lord continues, he is aware that occasionally points of law are taken on behalf of the defence and there is a ruling which results in the defendant changing his plea to guilty—because he has to. Then, if he wishes, he may pursue a right of appeal at a later stage. I asked for that to be within the definition of the terminating ruling. Am I wrong?

Lord Goldsmith: My Lords, the way in which the clauses put forward by the Government are structured is that the prosecutor will have to agree, when making such an appeal under this section, that if the appeal is refused, then the defendant will be acquitted. There is no equivalent provision to say that a defendant using this provision has to accept that, if his appeal fails, he will be convicted. Currently, if a defendant thinks that whether or not he pleaded guilty depends solely on a point of law, he has already the right to appeal. The ruling is made by the judge. The defendant pleads guilty. He takes the matter to the Court of Appeal which, if it agrees that the trial judge was wrong in his ruling of law, will then quash the conviction—because plainly the conviction coming from a plea of guilty has been based on that ruling of law. So the defence already has that right. A prosecution does not have any right at the moment to appeal against a terminating ruling.
	I wanted to comment on the Opposition amendments relating to no case to answer, but the House might be helped if the noble Lord, Lord Kingsland, intervened at this stage to say whether he wished to deal with the matter in this grouping or solely under Amendment No. 70A. Can the noble Lord help?

Lord Kingsland: My Lords, it would seem to me more appropriate to deal with that matter under the separate grouping to which the noble and learned Lord has kindly agreed, rather than now. However, if it forms part of his argument in respect of the other matters in this grouping, I would be most happy if the noble and learned Lord commented on it.

Lord Goldsmith: My Lords, perhaps it is simplest if I briefly state what I want to say and at least it will stand, if necessary, for the subsequent grouping.
	A terminating ruling as hitherto defined in the Bill could cover a range of different kinds of ruling of which a ruling of no case to answer is only one. The effect of amendments would be to remove from the Bill a prosecution right of appeal against any terminating ruling, and would be much wider than simply removing a ruling on a no case to answer submission. I assume for present purposes that that is not the intention of those moving the amendments, and that only rulings of no case to answer are intended, although that is not the effect of the amendments as they stand.
	This kind of ruling was the subject of discussion in Committee. I want first to discuss the implications of the government amendments on this issue. As currently drafted, it is possible for the prosecution to appeal only where the judge makes a ruling which either stops the trial or is so fatal that the prosecution brings it to an end by offering no further evidence. The prosecutor cannot ask the Court of Appeal to review any other rulings which preceded that fatal final ruling. However, a ruling of no case to answer is a special case. It may well be preceded by a number of earlier rulings, each of them incrementally weakening the prosecution case. The effect of some or all of those earlier rulings might contribute significantly to the judge's eventual decision to make the ruling of no case to answer.
	For that reason, where the prosecution appeals against a ruling of no case to answer, we consider that it should be able to nominate such earlier rulings as it specifies for the Court of Appeal to review at the same time all as part of the same appeal. It seems to us that it is only sensible and logical that where the prosecution appeals against a ruling of no case to answer there should be arrangements for the Court of Appeal to examine formally those earlier rulings which led up to the eventual ruling of no case. In that way the Court of Appeal will have a better grasp of the case and as a whole will be able to review more effectively the judge's terminating ruling.
	We say that this right of appeal is desirable in principle. Removing it would remove one of the main planks of the Bill. In the well known case of Galbraith the Court of Appeal decided that there were two kinds of ruling of no case to answer. The first, known as the first limb, applies where there is no evidence of at least one essential element of the case against the defendant. The second limb applies where there is some prosecution evidence but that taken at its highest it is such that a jury could not properly convict.
	The first limb is concerned with a pure point of law on which the Government believe it would be entirely appropriate to enable the prosecution to seek a review of the trial judge's decision by the Court of Appeal. We agree with the Law Commission's conclusions on this point. There is no logical distinction between a terminating ruling of law made during the prosecution case and one made at its conclusion. The Law Commission stated:
	"If a case is to fail on legal argument, it is better for public confidence in the criminal justice system that it should be susceptible to the second opinion of a higher court, than it be unappealable".
	Again, the Government fully concur with that view. The Law Commission drew an analogy with the present case-stated procedure in magistrates' courts, which already provides for a prosecution right of appeal on a point of law in summary cases. That is, therefore, the first limb.
	I turn to the second limb, the second kind of ruling of no case to answer identified in Galbraith; namely, one where a properly directed jury could not convict on the evidence. In its explanation of this kind of ruling, the Court of Appeal also reminded us that matters of evidence are normally within the province of the jury. Where on any one possible view of the facts there was evidence that a jury might convict, the case should be left to the jury; that is, only where the evidence is self-contradictory, out of reason and all common sense is it to be considered so inherently weak and tenuous that such a ruling should be given. I refer to the remarks of Lord Justice Turner in Shipping. In other words, where the second limb of Galbraith is concerned, judges should not normally be making a ruling of no case to answer.
	I indicated in Committee that I would expect it to be exceptional in practice for the Court of Appeal to overturn a judge's ruling of no case to answer falling within the second limb of Galbraith. But, given the regularity with which such rulings are made and the nature of such rulings, it is vital that the prosecution also has the right to test this kind of ruling. I gave an example in Committee, which I shall not repeat; it is recorded in Hansard.
	We consider also that it would be impossible to draw a line between the first and second limb of Galbraith. The distinction between there being absolutely no evidence for an element of an offence and there being some very tenuous evidence for it is too slight to provide a basis for an important procedural distinction.
	One of the themes which runs through the Bill is that the jury should be allowed to hear and to decide upon the evidence. If the judge second guesses a decision which is normally for a jury to make, it is only right that the prosecution should be able to test the judge's ruling by an appeal to the Court of Appeal. If the prosecutor wins the appeal, the evidence will then go on to be placed before the jury and the final decision on conviction or acquittal will be for the jury to make.
	For those reasons—I hope it has been helpful to deal with them at this stage—we consider that it is entirely proper that a ruling of no case to answer and, what is more, a ruling of no case to answer under both limbs, should fall within the ambit of the Bill. That is why in due course I shall resist the amendments which seek to remove that from the Bill. I beg to move.

Lord Kingsland: My Lords, first I thank the noble and learned Lord for giving such a full explanation of the government proposals. He was kind enough in his characteristically hospitable way to invite the noble Lord, Lord Thomas of Gresford, and me to talk to him about these matters the other day and we are extremely grateful to him for giving us that opportunity.
	Perhaps I may explain to your Lordships why we have asked for Amendments Nos. 70A and 96 to be degrouped and treated separately. We have a hierarchy of concern about Part 8. Our main concern is based on the principle of equality of arms. What is sauce for the goose should be sauce for the gander. If the prosecution is to have a right of appeal against evidentiary decisions by the trial judge, why should not the defendant have a similar one?
	That is our main theme, but we have two sub-themes. If the Government are to get their way on prosecution appeals only, we believe, first, that it should exclude appeals to decisions of no case to answer by the trial judge. In our view those decisions fall into a very special category.
	Secondly, in order to contain the huge extra burden that will be imposed on the Court of Appeal Criminal Division there should be some constraint on the face of the Bill on the type of evidentiary decisions which are subject to appeal. As I shall explain to your Lordships, if I have the opportunity later today, those constraints would fall into two categories of evidentiary appeal: first, those which concerned errors of law and/or secondly, appeals against evidentiary decisions which were so unreasonable that no reasonable judge could possibly have come to the conclusion to which he came.
	For the purposes of this group of amendments I shall address only the issue of principle, the issue of equality of arms. As noble Lords are well aware, the principle of equality of arms is laid down in the European Convention on Human Rights. There is some jurisprudence about it in the courts.
	It seems to us that there is a real possibility that these provisions in the Bill breach that principle. The Government have already proclaimed that the Bill accords with the European Convention on Human Rights and that is an assumption that we all have to make in the course of considering the Bill. However, it is important at this juncture to signal that here is a possible area where the Government have made a misjudgment.
	The matter was debated at some length in Committee. The noble and learned Lord the Attorney-General said in response to argument that the Opposition and, indeed, the noble Lord, Lord Thomas of Gresford, and the Liberal Democrat Front Bench, are wrong about their equality of arms proposition because a defendant will always have the right in appealing against his or her conviction, to argue, as part of his or her appeal, that the trial judge made an incorrect decision about the evidence.
	That is of course perfectly true, but, as we pointed out, even if the Court of Appeal Criminal Division comes to the conclusion that the trial judge has made an incorrect evidential decision, it may go on to say that, nevertheless, the conviction is perfectly safe because a reasonable jury, considering the remaining admissible evidence, would have found the defendant guilty.
	In our discussions the other day with the noble and learned Lord the Attorney-General, his response to that was to say, "Look at the Bill; look at the kind of decisions that prosecution appeals are aimed at. They are aimed at two types of decisions: first, terminating decisions, or decisions which would in effect be terminating; and, secondly—the other class of decisions which we have only just introduced at this stage—evidentiary decisions which would significantly weaken the prosecution case. Imagine the situation in which the defence had equivalent rights. Suppose in the Bill the defence"—as we would wish—"had the right to appeal against decisions that if the judge had made them correctly would have been terminating, or decisions which, if the judge made them correctly, would have significantly strengthened the defendant's case".
	The noble and learned Lord went on to say, "Suppose these evidentiary decisions were appealed against at the Court of Appeal and the Court of Appeal held that the defendant's arguments were correct and that the trial judge was wrong. Would it be conceivable that the Court of Appeal would nevertheless have gone on to say that the conviction was safe? No, it would not", said the noble and learned Lord the Attorney-General, and he referred me specifically to two cases—the cases of R v. Sargent and R v. Smith. I went off and looked at Blackstone to refresh my memory, like a constable in the witness box, about the range of cases which had been decided on these matters over the past few years.
	I have thought very carefully about the noble and learned Lord's argument. In the end I came to the conclusion that it was not convincing. My reason for deciding that relates to the very strong position taken by the Opposition about the principle of trial by jury—the right of a defendant, in a criminal trial, to be tried by his peers.
	In the case of prosecution appeals under the Bill, the prosecution goes to the Court of Appeal, and whatever decision the Court of Appeal makes—unless it falls into the terminating category—the matter goes back to the criminal trial. The evidence continues to be heard within the context of the Court of Appeal's decision, and the jury takes the final decision. That will not be the case for the defendant. In the defendant's case, if his rights only remain to raise evidentiary points in the Court of Appeal after conviction, it will not be the jury that determines his fate, it will be the three Law Lords in the Court of Appeal who decide whether or not a reasonable jury would have come to a particular conclusion.
	For those reasons we feel that it is perfectly proper, and indeed right, for us to continue to require either that the provisions for prosecution appeals are removed from the Bill or that the defendant is given similar rights to the prosecution.

Lord Thomas of Gresford: My Lords, I support everything said by the noble Lord, Lord Kingsland, on the topic. I shall not repeat his arguments. Perhaps I may give an illustration of the kind of situation which we both have in mind. The matter is very fresh in my mind, having sat through a judgment that took one and a half hours this morning.
	Let us suppose that under the Bill—the Bill having been put into effect—an application is made in the course of the defence for the defence statement to be put before the jury, and the judge rules against it. The trial proceeds and ultimately the defendant appeals on the basis that the judge's ruling was wrong and that the defence statement, had it been before the jury members, might very much have influenced their minds. It would, for example, have rebutted inferences that might be drawn under Section 34 of the 1994 Act, where a person does not answer when questioned in a police station; he does not give facts upon which he subsequently relies.
	Let us further suppose that the case then goes to appeal—and the appeal that was heard today is more than three years since the date of the beginning of that trial—and the judges in the Court of Appeal were to decide that the defence statement should in all fairness have gone before the jury; but, they look at the facts and at the prosecution case and they conclude that, notwithstanding their ruling in the hypothetical situation I am putting forward, the conviction was safe anyway. That is simply not the kind of situation that arises if there is a prosecution appeal on a matter envisaged under these provisions. Under these provisions, if it were held that the judge was wrong to exclude some evidence the prosecution wanted to put before the jury, the trial goes on and the defendant remains at risk.
	The noble Lord, Lord Kingsland, is absolutely right to point out that there is no equality of arms in these provisions. We should not be enacting legislation which contravenes a basic principle of the European convention. For those reasons, we on these Benches will support the noble Lord, Lord Kingsland.

Lord Goldsmith: My Lords, I profess to being extremely disappointed by what both noble Lords have said. Let me deal with the points raised. First, there is the principle that there should be a prosecution right of appeal—and we are here concerned with the principle that there should be a prosecution right of appeal against rulings which bring the case to a stop, whether it is because the ruling of the judge actually is that the case must stop, or because the effect of the ruling is that the prosecution cannot continue.
	I set out some examples as an annex to a letter that I sent to noble Lords, which was placed in the Library of the House, and to which I drew attention in Committee. It included, for example, the case where a man and a young woman were found with their clothes around their ankles. When asked whether or not the woman had consented to sex, the man said: "I don't know. I didn't ask her". There was bruising to both of them. At the end of the prosecution case the judge said that he was not going to allow the case to go to the jury. That is extraordinary. The matter never therefore went to the jury to determine whether or not they were satisfied of evidence of rape.
	We dealt with a recent case involving serious offences of money laundering concerned with drug-taking, where the amount at stake was around £10 million. On day 66, the trial judge stayed the case against the defendants in the trial and nine other defendants in allied trials because of a failure of disclosure by the prosecution. He said in terms that there was no deliberate intention to mislead the court and that a mistake had taken place. He also said that, although the document had not been disclosed when it should have been, it had now been disclosed, that the position was not irretrievable and had been retrieved. None the less, the judge took the view that it was right to bring the case to a complete stop.
	The Government believe that in such cases it is only right, in the interests of the public and victims in society, that that sort of ruling should be capable of being tested before another court. If the trial judge was right, so be it; if the Court of Appeal takes the view that he was wrong, the case should not have been brought to an end. I am therefore very disappointed by the proposition suggested by the noble Lord, Lord Kingsland, that the Government should simply abandon the possibility of having prosecution rights of appeal. The Government will not accept it.

Lord Kingsland: My Lords, I am extremely grateful to the noble and learned Lord for giving way. At the outset of my remarks, I was particularly careful to say that we had a hierarchy of concerns. There are ways of allowing prosecution appeals into the legislation, perhaps for perfectly sensible reasons, provided that the Government's solution is balanced. Our objection is that the Government propose a solution that is not balanced and fair and does not respect the rights of the defendants.

Lord Goldsmith: My Lords, I am picking up on the words of the noble Lord, who said towards the conclusion of his remarks that the Government ought either to remove prosecution rights of appeal from the Bill or take another course. He therefore proposes that it would be acceptable that there should be no prosecution right of appeal. I strongly disagree with that proposition.
	The noble Lord makes a fundamental point about equality of arms. Obviously, we have looked at the matter very carefully. The principle of equality of arms is one aspect of the right to a fair hearing under Article 6 of the European Convention on Human Rights. But the Strasbourg court has made clear that the question of whether a trial conforms to the standard required by Article 6 will be decided on the basis of the trial as a whole, including any appeal proceedings.
	The principle of equality of arms involves striking a fair balance between the parties to ensure that the defendant has a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-a-vis the prosecution. The content and operation of the principle does not require that the parties to a criminal trial should have exactly the same procedural rights. The defendant always has a general right of appeal against conviction at the conclusion of the trial; the prosecution has no such right. We have not suggested that the prosecution should have such a right, even though some have recommended it, or that it should have a right to appeal against unreasonable jury verdicts. There is sufficient balance to the interlocutory appeal that we propose.
	I am grateful to the noble Lord for thanking me for holding the meeting and writing to him and the noble Lord, Lord Thomas. I pointed out then—and he graciously accepted my point—that the case law of the Court of Appeal is such that it is not possible that the defendant would be disadvantaged in his appeal, by comparison with a prosecution right of appeal.
	Let us bear in mind that, at this stage, we are concerned with only one kind of ruling. Such a ruling is so serious that it says either that the case cannot continue at all—if, for example, it must be stayed for abuse of process or because no offence is made out in law—or that certain evidence is inadmissible; for example, that the prosecution cannot continue with the case. We are concerned with a fundamentally fatal ruling by the court. If a judge faced with such an application decides that there is no fatal flaw, but the Court of Appeal disagrees on grounds that there was insufficient evidence and states that the case should have been stayed, it is inconceivable that the Court of Appeal would allow a conviction to stand.
	The two cases to which the noble Lord, Lord Kingsland, referred make that very clear.

Lord Renton: My Lords, I am grateful to the noble and learned Lord for giving way. He is right in the very general statement that he makes. But we must bear in mind that, when drafting legislation, especially that dealing with people's rights, if we express one thing and omit the other there is an assumption that the other is necessarily admitted. There is a well known Latin phrase for that, but one must not use it now. I would have thought that it could do no harm, but would clarify matters, if the rights of the defence were inserted in the way that my noble friend has so wisely suggested.

Lord Goldsmith: My Lords, I am grateful for that intervention. The defendant's right to appeal is already enshrined in statute and applied in leading judgments and precedents of the courts. At present, there is no prosecution right of appeal at all during the trial, and that is why we seek to introduce one.
	The two cases to which I have referred the noble Lord, Lord Kingsland, are important. It is worth referring to them briefly. In the case of Sargent, decided by the House of Lords, the noble and learned Lord, Lord Hope of Craighead, said:
	"The question is, as Mr Houlder QC for the Crown accepted, whether the jury would inevitably have convicted"—
	I repeat, "inevitably have convicted"—
	"if the transcript of the interview had been edited so as to exclude all mention of the intercept".
	The point in the case was whether the transcript should have been allowed in. In considering the appeal, the Court of Appeal thought that the trial judge was wrong in allowing it in. But the question was not whether they thought that the jury might have convicted, but whether it was inevitable that the jury would have convicted, if that evidence had not been in.
	Secondly, in the case of Smith, the question arose of what should happen if the trial judge wrongly rejects a submission of no case yet the defendant goes on to give evidence. It is clear from the judgment of the Court of Appeal that the defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the prosecution case would be an abuse of process and fundamentally unfair. Even in the extreme case where the defendant goes on to give evidence, the conviction should be regarded as unsafe.
	As I said previously in answer to the intervention of the noble Lord, Lord Thomas, in the event that a defendant pleads guilty on the basis of an incorrect ruling, the Court of Appeal will quash the conviction. Equally, it will quash the conviction if a stay ought to have been granted. We have a number of such examples going through the courts.
	In the two cases of Francom and Togher, the Court of Appeal has made clear that fairness for Article 6 purposes goes along with unsafeness for appeal purposes. If something is unfair in accordance with Article 6 of the convention, the Court of Appeal will not allow the conviction to stand.
	With respect, the equality of arms principle is not a good point to take. The defendant already has a general right which is even more extensive than the right that the prosecution here seeks. Finally, the noble Lord's argument fails to address at all my opening point. Under the head of prosecution rights of appeal, the prosecutor, when seeking leave, must say, "I accept and I agree that if leave is not granted or if leave is granted and the Court of Appeal dismisses the appeal, then this man is entitled to be acquitted".
	No corresponding proposition is proposed for the defendant. Therefore, the effect of including the rights to which the noble Lord refers would mean that the defendant would have the ability to appeal any ruling—I repeat, any ruling—made by the judge with no sanction attached to it at all. If the Court of Appeal disagreed, the trial would simply go on. I repeat that that would simply bring the administration of justice to a grinding halt because appeal after appeal would be brought.
	While I fully respect the concerns for the rights of defendants, the Government carefully considered those; the Law Commission considered those. The Law Commission did not see this as a problem—neither did we—because the defendant has the extensive right of appeal which gives him all the safeguards and a greater right than the prosecution would have.

Lord Kingsland: My Lords, once again, I am most grateful to the noble and learned Lord for his reply. I would not want your Lordships to think that the Opposition is opposed to Part 8 in principle. On more than one occasion, we have set out to the noble and learned Lord what we consider to be a reasonable solution to the issues that he seeks to face. A properly balanced system giving equivalent rights to prosecution and defence could be constructed. It could be constrained by the requirement that leave to appeal be given only for either an error of law on the basis that the decision by the trial judge was so unreasonable that no reasonable trial judge could have come to such a conclusion.
	From what the noble and learned Lord has said, my understanding is that he is not prepared to accept such a solution. That being so, I would like to seek the opinion of the House.

Lord Goldsmith: My Lords, the noble Lord has not moved his amendment yet. I should certainly like to know what the House thinks about my amendment, if the Question could be put.

On Question, Whether the said amendment (No. 70) shall be agreed to?
	Their Lordships divided: Contents, 104; Not-Contents, 111.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Kingsland: moved, as an amendment to Amendment No. 70, Amendment No. 70A:
	Before Clause 48, insert the following new clause—
	"APPLICATION OF PART 8
	Nothing in this Part shall apply to terminating rulings based on the submission of no case to answer."

Lord Kingsland: My Lords, I am not sure what the consequences of the last vote are for this amendment, but I shall speak to it. The noble and learned Lord the Attorney-General has already expressed some views about what I am about to say. He will no doubt add further ones when I conclude. I shall be brief.
	Amendment No. 70A would exclude from the definition of "terminating ruling" in the Bill decisions by the trial judge of no case to answer. In our view, those decisions are of a particular and specific character because they involve by the trial judge a view uniquely and solely of the facts of the case and of the evidential support for those facts. When a trial judge considers a proposal of no case to answer by prosecuting counsel, he is looking at both the evidence given by the prosecution witnesses and their demeanour while giving it. If there is some evidence under the Galbraith rule, he will seek to determine whether it is so slender or far fetched as to be wholly valueless.
	It is almost inconceivable that the Court of Appeal Criminal Division would be in a position to second-guess the trial judge about such an exercise of discretion. In those circumstances, the decisions by the trial judge of no case to answer should be excluded from the Bill. I beg to move.

Lord Thomas of Gresford: My Lords, I spoke on this principle in Committee, and support the view expressed by the noble Lord, Lord Kingsland, on Report. One of the matters that concerns the Government is the long trial—the ruling of no case to answer at the end of six or nine months of a long trial. It then appears that a lot of money has been wasted. That sort of thing makes newspaper headlines and leads to criticisms of the system. In precisely that sort of case, it would be virtually impossible for the Court of Appeal to second-guess the view of the trial judge. That judge has sat through all the proceedings, heard the evidence, is familiar with the schedules and exhibits and the circumstances of the case, and the prosecution have failed to satisfy him that there is sufficient evidence to go to a jury. How a Court of Appeal could then sit down for weeks and weeks, read through the same material and transcripts of the evidence and come to a different conclusion baffles me.
	If the main problem—the ruling at the end of a long prosecution case—cannot be resolved in that way, it is wrong in principle to extend it to the shorter case when perhaps the Court of Appeal could have a better grasp of the issues.

Lord Ackner: My Lords, would the noble Lord assist me? I recollect a case in Hong Kong when it was perfectly clear that after many, many days the judge concluded that he just could not cope. Therefore, he said that there was no case to answer. As a result, a case that was supported by strong and compelling evidence by Lord Benson, which was on the question of fraud and very complex in its detail, fell. He was absolutely outraged and astonished. Is there to be no remedy for such a case?

Lord Thomas of Gresford: My Lords, I recall the case very well. The prosecution case lasted for 18 months. The court sat every day from eight o'clock in the morning until one o'clock in the afternoon when the learned judge adjourned for lunch. At the end of the 18-month period, he was not in a position to give a ruling that the prosecution had established a case. What was wrong in the specific instance to which the noble and learned Lord referred was that the prosecution tried to take a huge bite out of a very large case and found that it could not sustain the basic job of a prosecution; that is, to explain the case in simple terms. That was a good example of a fraud trial running away with itself and it is the kind of thing of which I am sure the noble and learned Lord the Attorney-General would not approve.

Viscount Bledisloe: My Lords, can the noble Lord, Lord Kingsland, enlighten me? I see the force of the case he has described, but is that the only case in which one can make a submission of no case to answer? Why cannot the defence say that there is no case to answer because an element of the offence, properly understood, requires mens rea, let us say—a wicked mind—and the judge to say, "Yes, it does require that and there is no evidence of it, therefore I throw it out and there is no case to answer"?
	If the prosecution wants to appeal and say, "No, that is not a proper interpretation of the statute", that is not an element, but is it not still a submission of no case to answer? Is the example given by the noble Lord that the judge is throwing it out because the case is evidentially too weak the only meaning of the phrase "no case to answer"?

Lord Kingsland: My Lords, I am grateful to the noble Viscount. As I understand it, in assessing a submission of no case to answer by the prosecution, the judge will be taking into account both the mens rea and the actus reus of the case to the extent required. He decides whether or not to allow the case to go on and hear defence evidence. In my submission, there is no difference between mens rea and actus reus in that respect.

Viscount Bledisloe: My Lords, before the noble Lord sits down, I am saying that the difference between the prosecution and the defence is a question of whether, as a statutory element of the case, mens rea is necessary. The judge will say, "Yes, it is and there is therefore no case", and the prosecution wants to appeal because it is not there. That seems to me to be capable of being a submission of no case to answer.

Lord Kingsland: My Lords, I have just been told by my superior, my noble friend Lady Anelay, that I am not allowed to jump up and down at the Report stage. I am happy to comment on that when I make my concluding remarks.

Lord Goldsmith: My Lords, I am happy to say that the noble Viscount is absolutely right, as was the noble and learned Lord, Lord Ackner, if I may respectfully say so. What is bizarre about the amendment is what is proposed because it is not what the noble Lord, Lord Kingsland, has described. By virtue of the Division that has just taken place, Clause 47, which I was trying to take out of the Bill, remains in the Bill. That defines "terminating ruling" as,
	"a ruling by a judge of the Crown Court . . . which, if given effect to, will, without any further action by the prosecution, result in the termination or stay of proceedings for the offence, or one or more of the offences, including the indictment".
	The proposal made by the noble Lord, Lord Kingsland, in Amendment No. 70A is to insert:
	"Nothing in this Part shall apply to terminating rulings".
	Therefore, the effect of the amendment is not restricted to no case to answer or to no case to answer submissions which are the second limb of Galbraith. It is to take out of prosecution right of appeal the most important element of rights of appeal; that is, rulings by the judge that the case should come to an end.
	I had understood that the noble Lord recognised the technical deficiencies of his amendment and therefore would not be moving it, but I am plainly wrong. However, the amendment will not achieve what he is saying, for the reasons I gave previously and which have been eloquently put by the noble and learned Lord, Lord Ackner, and the noble Viscount, Lord Bledisloe, as being in any event bad.

Lord Kingsland: My Lords, before turning to my concluding remark, perhaps I may make an observation about the comments made by the noble Viscount, Lord Bledisloe, and the noble and learned Lord the Attorney-General. I now believe that I better understand the point made by the noble Viscount. Of course, if there is an argument between the defence and the prosecution about whether the statute which is relevant to the trial does or does not require mens rea, that is clearly not a matter which falls within the decision of no case to answer. It will be necessary for the trial judge to consider that point before he goes on to consider whether there is a case to answer.
	I agree with the noble Viscount that a consideration of whether mens rea is or is not part of the case is not a matter which falls within the terms of no case to answer and in any event is not intended to fall within the terms of my amendment.

Lord Goldsmith: My Lords, will the noble Lord say whether it falls within the terms of the definition of "terminating ruling" in Clause 47?

Lord Kingsland: My Lords, my amendment states:
	"Nothing in this Part shall apply to terminating rulings based on the submission of no case to answer".
	That is what is stated in my amendment on the Marshalled List.

Lord Donaldson of Lymington: My Lords, as one who has not popped up and down, perhaps I may be allowed to seek enlightenment. As I understand it, Clause 47 not having been taken out of the Bill, we have a definition of "terminating ruling". Amendment No. 70A puts an exception on the definition of "terminating ruling". The wording of the exception is such that if in any case a judge can properly say, "I rule that there is no case to answer", whether that has an evidential or legal base does not matter. If the amendment is passed, the prosecution will be unable to appeal—and for my part that is complete nonsense.

Lord Lloyd of Berwick: My Lords, for my part, it makes excellent sense.

Lord Kingsland: My Lords, what is the noble and learned Lord the Attorney-General to make of the last two interventions? I know which one I prefer.
	I am grateful to all noble Lords who have participated in the debate. I shall reflect on what they and the noble and learned Lord the Attorney-General have said and in the meantime beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 48 [Prosecution right of appeal against certain rulings]:

Lord Goldsmith: had given notice of his intention to move Amendment No. 71:
	Page 33, line 13, leave out subsections (1) to (4) and insert—
	(1) In relation to a trial on indictment, the prosecution is to have the rights of appeal for which provision is made by this Part.
	(2) But the prosecution is to have no right of appeal under this Part in respect of—
	(a) a ruling that a jury be discharged, or
	(b) a ruling from which an appeal lies to the Court of Appeal by virtue of any other enactment."

Lord Goldsmith: My Lords, I have spoken to the remaining amendments in the group but I am not entirely sure what the noble Lord's attitude is to them.

Lord Kingsland: My Lords, the Government have provided a large grouping in order to debate the central issue which they have promoted in Part 8 of the Bill. Your Lordships' House has pronounced on that debate in a vote and the vote went against the Government. I should have thought that the conclusions which the noble and learned Lord the Attorney-General ought to draw from that are perfectly obvious.

Lord Goldsmith: My Lords, I think that we are in something of a muddle because we were attempting to rewrite this. I understand what the noble Lord is saying; he treats the effect of the vote as having destroyed prosecution rights of appeal. I will not move the amendment. I will consider the position and the amendments will be back before your Lordships' House at some stage.

[Amendment No. 71 not moved.]
	[Amendments Nos. 72 to 75 not moved.]
	Clause 49 [Appeals against terminating rulings]:
	[Amendments Nos. 76 to 89 not moved.]
	[Amendment No. 90 had been retabled as Amendment No. 91A.]
	Clause 50 [Appeals against certain other rulings]:
	[Amendments Nos. 91 and 91A not moved.]
	Clause 51 [Expedited and non-expedited appeals]:
	[Amendments Nos. 92 and 93 not moved.]
	Clause 52 [Continuation of proceedings for offences not affected by ruling]:
	[Amendments Nos. 94 and 95 not moved.]
	Clause 53 [Determination of appeal by Court of Appeal]:
	[Amendments Nos. 96 to 110 not moved.]

Lord Goldsmith: had given notice of his intention to move Amendment No. 111:
	After Clause 53, insert the following new clause—
	"APPEALS IN RESPECT OF EVIDENTIARY RULINGS
	(1) The prosecution may, in accordance with this section and section (Condition that evidentiary ruling significantly weakens prosecution case), appeal in respect of—
	(a) a single qualifying evidentiary ruling, or
	(b) two or more qualifying evidentiary rulings.
	(2) A "qualifying evidentiary ruling" is an evidentiary ruling of a judge in relation to a trial on indictment which is made at any time (whether before or after the commencement of the trial) before the opening of the case for the defence.
	(3) The prosecution may not appeal in respect of a single qualifying evidentiary ruling unless the ruling relates to one or more qualifying offences (whether or not it relates to any other offence).
	(4) The prosecution may not appeal in respect of two or more qualifying evidentiary rulings unless each ruling relates to one or more qualifying offences (whether or not it relates to any other offence).
	(5) If the prosecution intends to appeal under this section, it must before the opening of the case for the defence inform the court—
	(a) of its intention to do so, and
	(b) of the ruling or rulings to which the appeal relates.
	(6) In respect of the ruling, or each ruling, to which the appeal relates—
	(a) the qualifying offence, or at least one of the qualifying offences, to which the ruling relates must be the subject of the appeal, and
	(b) any other offence to which the ruling relates may, but need not, be the subject of the appeal.
	(7) The prosecution must, at the same time that it informs the court in accordance with subsection (5), inform the court of the offence or offences which are the subject of the appeal.
	(8) For the purposes of this section, the case for the defence opens when, after the conclusion of the prosecution evidence, the earliest of the following events occurs—
	(a) evidence begins to be adduced by or on behalf of a defendant,
	(b) it is indicated to the court that no evidence will be adduced by or on behalf of a defendant,
	(c) a defendant's case is opened, as permitted by section 2 of the Criminal Procedure Act 1865 (c. 18).
	(9) In this section—
	"evidentiary ruling" means a ruling which relates to the admissibility or exclusion of any prosecution evidence,
	"qualifying offence" means an offence described in Part 1 of Schedule (Qualifying offences for the purposes of section (Appeals in respect of evidentiary rulings)).
	(10) The Secretary of State may by order amend that Part by doing any one or more of the following—
	(a) adding a description of offence,
	(b) removing a description of offence for the time being included,
	48 (c) modifying a description of offence for the time being included.
	(11) Nothing in this section affects the right of the prosecution to appeal in respect of an evidentiary ruling under section 49."

Lord Goldsmith: My Lords, Amendment No. 111 would have added to the Bill a new prosecution right of appeal against an evidentiary ruling or series of evidentiary rulings. The second government amendment, Amendment No. 143B, would have added a new schedule to the Bill defining the offences in relation to which such an appeal may be made.
	We were previously debating a prosecution right of appeal against a ruling which brings the case to an end. The proposed appeal is different and has attached to it different safeguards and different conditions. I say that at this stage in order to give the noble Lord an opportunity to intervene—this issue not having been debated—if he takes the view that the matter has been resolved by the previous vote. I take the view that it has not, but if the noble Lord disagrees it would be helpful to know.

Lord Kingsland: My Lords, this is a separate group. I am perfectly happy to respond to anything the noble and learned Lord the Attorney-General may wish to say about this block of amendments. However, if I were in his shoes—he may consider that an impertinent remark to make but, nevertheless, I shall continue—I would consider that, if I had lost the case on terminating decisions by a trial judge, my case would have been even weaker on evidentiary decisions which were not terminating.

Lord Goldsmith: My Lords, one of the difficulties is that we have not heard what other concerns noble Lords have over and above the point on equality of arms, which I accept was debated in the previous grouping. In the light of the noble Lord indicating that he takes the view that the case of principle to take prosecuting rights of appeal out of the Bill is made—I take the view that that is what the Opposition have achieved and that they will have to live with the consequences—it is perhaps better that I do not move the government amendments.

[Amendment No. 111 not moved.]
	[Amendments Nos. 112 to 116, as amendments to Amendment No. 111, not moved.]
	[Amendment No. 116A not moved.]
	[Amendment No. 117 not moved.]
	[Amendments Nos. 118 and 119, as amendments to Amendment No. 117, not moved.]
	[Amendment No. 120 not moved.]
	[Amendment No. 121, as an amendment to Amendment No. 120, not moved.]
	[Amendment No. 122 not moved.]
	[Amendment No. 123, as an amendment to Amendment No. 122, not moved.]
	[Amendment No. 124 not moved.]
	Clause 57 [Restrictions on reporting]:
	[Amendments Nos. 125 to 137 not moved.]

Lord Bassam of Brighton: My Lords, I suggest that we now adjourn during pleasure. There is a great deal of confusion as to where we stand in the Bill, Amendment No. 70 having been agreed to. It would be for the benefit of the House if we had a five or 10 minute adjournment to allow noble Lords opposite to discuss with noble Lords on our side of the House, the Ministers and perhaps officials, to ascertain exactly where we are and where we will have to go.

Baroness Anelay of St Johns: My Lords, I have discussed this issue with noble Lords on this side of the House. We need to find a way whereby there can be discussions, not only today on the detail of the procedure but also between now and Third Reading, as a matter of urgency, to ensure that the plans for prosecution appeals that can be agreed by the whole House are brought forward expeditiously. Certainly, in the mean time, we agree with the proposition of the noble Lord, Lord Bassam.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness. It would be most helpful to have brief discussions now and discussions between now and Third Reading on how we can take these matters forward. I beg to move that the House do now adjourn during pleasure until 5.20 p.m.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 5.9 to 5.20 p.m.]

Lord Goldsmith: moved Amendment No. 138:
	After Clause 58, insert the following new clause—
	"RULES OF COURT
	(1) Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part.
	(2) Without limiting subsection (1), rules of court may in particular make provision—
	(a) for time limits which are to apply in connection with any provisions of this Part,
	(b) as to procedures to be applied in connection with this Part,
	(c) enabling a single judge of the Court of Appeal to give leave to appeal under this Part or to exercise the power of the Court of Appeal under section 49(8).
	(3) Nothing in this section is to be taken as affecting the generality of any enactment conferring powers to make rules of court."

Lord Goldsmith: My Lords, this amendment would insert a new clause enabling rules of court to be made for the sole purpose of this part of the Bill. As the new drafting which the Government wanted has not been accepted by your Lordships, the existing provisions remain on the face of the Bill and it is important, while those provisions remain, for there to be rules of court. The amendment simply provides enabling powers, and I hope that noble Lords will agree that it is sensible to have at least this provision, which enables rules of court to be made. I beg to move.

Lord Kingsland: My Lords, we, for our part, are delighted to support the Government on this new clause.

On Question, amendment agreed to.
	Clause 59 [Interpretation of Part 8]:
	[Amendments Nos. 139 to 142 not moved.]
	Clause 60 [Cases that may be retried]:

Lord Lloyd of Berwick: moved Amendment No. 143:
	Page 40, line 35, leave out subsection (6).

Lord Lloyd of Berwick: My Lords, we now come to another important part of the Bill relating to the rule against double jeopardy. The purpose of my amendment is to remove Clause 60(6), which would make Part 9 of the Bill retrospective. The amendment raises a very short point—it is not, happily, a lawyer's point. It involves what is, to my mind, simply a question of elementary justice.
	The amendment is independent of the other amendments which will be moved under this part of the Bill. Perhaps more importantly, it is independent of whether one is for or against the rule against double jeopardy.
	On the one hand, we heard very powerful speeches in Committee from the noble Lord, Lord Neill of Bladen, and the noble Baroness, Lady Kennedy of The Shaws, in favour of retaining the existing rule against double jeopardy. No doubt we will hear further powerful speeches later on this evening. On the other hand, we heard a powerful speech from the noble Lord, Lord Brennan, against the current rule.
	My provisional view is that the Government have made out a case, on balance, for some relaxation of the rule against double jeopardy, but I could still be persuaded the other way. However, the Government have not begun, in my opinion, to make out a case that any change in the law should be made retrospective.
	It is a fundamental rule of English law, stated in all the leading textbooks, that statutes should never be given a retrospective effect unless no other construction is possible. The reason for that universal rule—it is not just a rule in England but applies, so far as I know, throughout the common law world—is clear. It is so obviously unjust to take away a man's rights, or to create new liabilities with retrospective effect that Parliament cannot have so intended unless it has specifically said so.
	What is true of judges in construing Acts of Parliament must also, I suggest, be true for us when passing Acts of Parliament. We must make sure that in curing injustices, we do not create other injustices. That is what we shall be doing if we allow Clause 60(6) to stand. That is what makes this amendment different from the other amendments and, I suggest, makes it one that ought to be acceptable to all sides of the House—those who approve of the rule against double jeopardy, those who disapprove, and even those, if I may say so, who have done some kind of a deal between the Front Benches regarding the way in which this matter is dealt with. I suggest that the retrospectivity argument overrides all the other arguments in respect of Part 9.
	Let me take an example of what I have in mind from another part of the Bill. Clause 265 provides for a minimum sentence of five years for certain firearms offences. Let us suppose that I had committed a firearms offence but had not yet been tried when this Act comes into force. Would anybody argue—would anybody dare argue—that I ought to be subject to the minimum of five years' imprisonment when I committed my offence at a time when there was no such rule? The answer is, of course not. It would be grossly unjust and the Government have not even attempted to make Clause 265 retrospective. If they had, it would not have lasted for half an hour because it would have been plainly contrary to Article 7 of the convention.
	What I have said about Clause 265 applies equally to Clause 60. Let us further suppose I had committed some serious offence five years ago. I had a right, under the law, to be tried by judge and jury. I had a right, under the law as it then existed, that, if acquitted, I would never be tried again for that offence. To deprive me of that existing right by changing the law now seems to be a gross injustice.
	There is here an important question of principle which arises, I repeat, whether or not we are in favour of Part 9. It arises because of the dislike of this House of retrospective legislation of any kind. It is not confined to retrospective legislation creating a new offence—the rule is far wider than that. But, as I have said, if subsection (6) is allowed to stand, a man who has, in a layman's eyes, been declared innocent by the court and by the jury when he has been acquitted could, as a result of Part 9, be convicted. That seems to me to be the plainest injustice.
	Involving as it does a question of principle, I had expected that when the noble and learned Lord the Attorney-General came to reply at Committee stage, he would deal with the point of principle. However, I was disappointed. He did not attempt to answer the question of principle that I have outlined; he gave only an example of someone—a mother, I believe it was—who he said he would not be able to look in the face again if Part 9 were not made retrospective. That prompted the noble Earl, Lord Russell, to ask whether we were not in danger of legislating to meet a particular case. The noble and learned Lord replied that he had more than one case in mind.
	The noble Earl, Lord Russell, was absolutely right. I have no doubt that even now the police have a list of those whom they would like to be tried again because they believe that they were wrongly acquitted. I suspect that that list may contain perhaps a dozen names, and I should not be surprised if it were actually in the possession of the Home Office. Of course, I do not forget the victims—we must never forget the victims—but we must remember that those who have committed crimes also have their rights.
	By all means let us make Part 9 prospective; that should give the Government all they want. But to include a provision for the purpose of catching men and women on that list of people who have already been acquitted is to my mind profoundly shocking. I beg to move.

Lord Renton: My Lords, the noble and learned Lord, Lord Lloyd of Berwick, has made an overwhelming case for preventing the retrospective effect of Clause 60. The clause is controversial and, in my opinion, bad enough as it is, but to go and make it retrospective is contrary to the fundamental principles of justice in English law. I cannot understand how the Government got themselves into this position.
	I would hope that, in view of the very strong case made by the noble and learned Lord, we can quickly dispose of subsection (6), which would enable a retrial to take place after a person has already been acquitted. To do so in a case that is entirely retrospective is even more wicked. I hope that the Government will see that and agree with the amendment.

Lord Clinton-Davis: My Lords, I, too, support the amendment. The case made by the noble and learned Lord, Lord Lloyd of Berwick, is persuasive, compelling and unanswerable. From the point of view of those who subscribe to the view that civil liberties matter, it is important that this clause, or this part of the clause, should be disapplied.
	I want to know from my noble and learned friend what he believes is the correct construction of Article 7 of the appropriate convention. What effect would he say it has? In my view, the case that has been put against the provision is totally unanswerable. As the clause is drafted, the police are put in a position which, while they may want it, is not in accordance with the civil liberties that I have advanced. The noble and learned Lord has prescribed making the offence prospective, which is entirely in accordance with common sense. I hope that my noble and learned friend the Attorney-General will conclude that what is proposed here is sensible and right.

Lord Mayhew of Twysden: My Lords, I should like to focus a little more closely on the practical consequences of leaving in subsection (6). I support the amendment.
	Two principles are engaged, in addition to the broad principle on which the noble and learned Lord, Lord Lloyd of Berwick, has based his amendment. The first principle is that public faith, once pledged, should not be broken. The second is that legitimate expectations that have been occasioned by government action or the action of Parliament should not be frustrated. Those are two important principles which I have always understood that successive governments have sought to apply. The second is an application of the first, and is one of the fundamental criteria for judicial review.
	Lest it be thought that no practical circumstances are engaged here and that it is all a matter of constitutional or jurisprudential nicety, I suggest the following case. If I commit an offence, I am entitled to suppose that, once acquitted, that is going to be that. Having got the little problem of the prosecution out of the way, I am perfectly entitled to suppose that that will be it and that I can make my arrangements for housing, employment and my finances accordingly. Now it is proposed that a second bite of the cherry shall, in some circumstances, be allowed the prosecution. Those expectations, on the basis of which I have changed and perhaps worsened my position, will be frustrated. That is the practical consequence of what is achieved by the subsection. To avoid it is the very proper purpose of the amendment, which I support.

Baroness Kennedy of The Shaws: My Lords, as your Lordships know, I take a position against any interference with the rule against double jeopardy. We shall meet that in the fullness of time. However, I want to support the amendment as a position short of that.
	Of course, we understand that there should be cold-case reviews now that DNA evidence has developed—and the science of DNA has developed. It should be possible to go back and look at samples taken from scenes of crime and perhaps find a culprit.
	It is very different to have cold acquittal reviews. I suspect that once the measure is passed, there will be every temptation for police officers to remember cases in which they were involved and decide to revisit them in the hope that they may secure a different result. In practical terms, it is not a proper use of the prosecution authorities and the investigative powers of the police given that the police fall short in obtaining convictions on the cases currently going through the system. There is only a 25 per cent success rate in securing convictions against all the crime that takes place. So that is not a good use of the resources of our police and prosecuting authorities.
	However, there is something much worse than that. We live in a society of which I feel very proud because it protects liberties—or it has done. People who are still alive who have been acquitted of serious crime—properly acquitted; we are not only discussing the guilty but the innocent—will fear the hand on the shoulder, the terror that is created by not allowing people to have a fresh start after an acquittal, the finality that has been part of our system. The feeling that when you leave a court, it is over and you rebuild your life is now stopped in its tracks.
	We are creating conditional acquittals, a conditional form of verdict, not the proper verdict with which we have always lived. That is what is so terrible about the provision. The explanation given by my noble and learned friend the Attorney-General was that he had met the mother of a victim of murder whose killer had confessed, having been previously acquitted. He asked, "How could I ever look that mother in the face again?" I, too, know how awful it is when one is confronted with victims who have experienced terrible pain, but we must have peace for all of us.
	In our society, we must sometimes make rules that do not deal with the individual pain for people such as Mrs Ming. I know that the amendment will not give peace to her, but it will mean giving peace to the many people who have until now been acquitted. That is why I support the amendment; that is also why I think that the whole business of taking away the rule is so wrong. The principle has been there for good reason, so I support the noble and learned Lord, Lord Lloyd. I hope that he will be persuaded to support other subsequent amendments, which deal with gross interference with a principle that is there because it is part of the glue, cement and security for people that the state cannot again come and put its hand on their shoulder.
	There are now rumours afoot that Winston Silcott, released from custody on parole last week, is one person on the list to which the noble and learned Lord, Lord Lloyd, referred. I am concerned that we shall create victimisation of a kind that we should not know in our country.

Lord Judd: My Lords, it is always extremely daunting for someone who is not a member of the legal profession to intervene in a debate such as this, but I have been trying to follow the deliberations on the Bill. In many ways, I am sorry that we have been denied the much fuller debate that we were anticipating earlier this afternoon. I wanted to participate in that debate, but I must not stretch the rules of the House by trying to introduce my comments by the back door. The noble Lord the Liberal Chief Whip shakes his head firmly at me.
	However, it is in order to make two points, because they could be made about many amendments. The first is that, as the Bill has proceeded, I have become more and more profoundly disturbed. I see the issue addressed by the amendment not only as an issue in itself but as symptomatic of what is at fault in the Bill as a whole. I am disturbed because it has become clear that the Bill will change the whole culture of our nation.
	Fundamental to the life of this nation—I say this as a layman in legal matters—has been the principle that you are innocent unless you are proved guilty. If you are declared not guilty in a case, you are then innocent. The right reverend Prelate the Bishop of Worcester made an important intervention during the Minister's summing up yesterday about a new category of citizenship that was being introduced in a sort of netherland.
	I therefore emphasise that, exactly as my noble friend Lady Kennedy of The Shaws said, among many people who thought that the matter had been settled in the court, there will be that fear of the hand on the shoulder. She is absolutely right.
	Because I am a layman, I live perhaps more in the real world out there than do others who are totally preoccupied with the niceties of the law. I live in a world that is increasingly dominated by the media. If much of the media were unconvinced by a verdict that had been properly reached in the court, the media would find a way of hounding and pursuing the person whom they believed was guilty for months and years ahead. I believe that this legislation will open still wider the door to that type of persecution by the media.
	Those considerations are basic to my position. I turn to the specifics of this amendment, which I applaud and welcome. As an ordinary citizen, I have always seen another principle as fundamental to our way of life—the principle that we do not have retrospective legislation in the United Kingdom. That is simply a fundamental matter of principle and the amendment is right to address it.
	I say to my noble friends on the Front Bench that of course I understand the pressures under which the Government are operating. Of course I understand the sophisticated crime with which they are now confronted, the terrorism and all the rest. However, what worries me is that we should not inadvertently give a victory to the terrorists who are trying to destroy the very society we are trying to protect. We should not give a victory to the organised crime that is trying to put our legal system under pressure by actually beginning to erode the society and the values of the society that we feel to be so important. I am deeply grateful that this amendment has been moved and I fully support it.

Viscount Colville of Culross: My Lords, I hope that the noble and learned Lord, Lord Goldsmith, can help the House on the question of Article 7 of the European convention. It is not just about retrospective legislation creating offences that did not exist at the time when the action took place. It also deals, under the jurisdiction of the Strasbourg court, with foreseeability and clarity of legislation for everyone to understand. I can very well see that it would be perfectly proper under that provision to introduce this sort of subsection as a prospective matter. Everyone would then know that it would be perfectly possible to reopen the matter and, if new scientific evidence or something like that turned up, they would again be at risk.
	What I think is very difficult is that, because of all the rules that we have about autrefois acquit, no one could possibly have anticipated that, whatever evidence turned up, they would be retried for the same offence. Such a provision has now been put in. It is not just the retrospectivity; it is the foreseeability and the clarity of the law, which is all part of Article 7. I do not understand how this can possibly conform with the European convention.

Baroness Whitaker: My Lords, I rise with some timidity in a debate which has been almost entirely undertaken by lawyers. That is the reason that I did not take part at Committee stage, although I did listen to all of it and I reflected. Having reflected, I would like to express some confusion about this amendment. To the non-lawyer, justice is first about the attribution of responsibility. That must come chronologically before questions of fair treatment for the perpetrator. When I sat as a magistrate or as a member of employment tribunals, it was the first question that people wanted answered.
	Noble Lords who spoke for the amendment have placed other considerations before the attribution of responsibility such as not to hound someone more than once for the same crime and not to do so retrospectively.
	Again, with great timidity I offer a layman's view of retrospectivity. It is right that a perpetrator should not be convicted if what he did was not considered a crime at the time he did it. But the offences in this connection are so serious that they have not only been held to be crimes for centuries; I think they would in most societies be marked as wrong by any reasonable person.
	I also understand that to pursue an alleged perpetrator with fresh evidence once the closure of a judicial decision has been reached could be disproportionate; and worse, it could be abused by a vindictive or incompetent state. But for various crimes of violence, constrained fresh evidence would help in the attribution of responsibility.
	Of course, guilty people have rights. That comes in sentencing, in the nature of the sanction applied, in treatment during the course of any sanction and after it is over. But to allow the interests of the perpetrator to go so far as to prevent the attribution of responsibility in the first place seems to me to be ultimately unjust. So I have great difficulty with the amendment.

Lord Corbett of Castle Vale: My Lords, I had the honour of chairing the Home Affairs Select Committee in another place, which was invited to consider the proposition that the law on double jeopardy should in certain narrow circumstances be changed. I have to say to your Lordships that every one of the criticisms and concerns that have been voiced on this issue in this Chamber this afternoon were expressed in the course of that inquiry.
	I started from the point of view that I needed to be persuaded that the change was justified. That is where the committee ended up, I have to say. We started on the basis of two principles. The first is that it is the duty of our criminal justice system as best and fairly as it can to see that the guilty are convicted and that the innocent are acquitted. I believe that the question in front of your Lordships' House this afternoon in considering the amendment moved by the noble and learned Lord is whether it gives justice to the family or relatives of a victim where, following an acquittal, new and compelling evidence comes to light which, despite the rigour of the investigations, was not available at the first trial, and where the person who is acquitted of murder is able to go away scot-free even if—and I can think of two or three such cases—they have subsequently boasted of that. I think the answer to that is that people out there, victims and the relatives of victims, would think your Lordships' House had gone mad if it said that after a certain date that could happen but before that date it could not.
	I certainly understand the fear of the hand on the shoulder referred to by my noble friend Lady Kennedy of The Shaws. However, I want those wrongly acquitted to feel the hand of justice on their shoulder where new and compelling evidence persuades the court to set aside the original acquittal, because that is what must happen, where the police have to demonstrate that they were not idle or negligent in the collation and the presentation of evidence at the first trial, and where it is in the public interest to order a second trial. Those are big hurdles. It is not simply a case of plod saying with respect to this or that person who was acquitted, "Let us have another go at this guy; we want him behind bars". It does not happen that way. Those are very stringent and important tests.
	As I say, I believe that the measure would constitute a gross injustice. I defy anyone to explain the concept of an arbitrary date on a calendar to the relative of a victim and to explain that despite new and compelling evidence having been accepted by the courts to set aside the acquittal, someone with or without a wig may say, "Sorry about that, but the calendar is showing the wrong date". It simply does not make sense and I hope that your Lordships will accept that argument.

Lord Borrie: My Lords, I follow my noble friend Lord Corbett in two senses of the word. I am following him in that I am speaking after him and I also follow him in the trend of the argument. I was somewhat surprised that my noble friend Lord Clinton-Davis thought that the arguments of the noble and learned Lord, Lord Lloyd of Berwick, were unanswerable. I found them persuasive—it would be surprising if I did not find any arguments coming from the noble and learned Lord persuasive—but they did not give all the story, as it were. Perhaps one reason we have not had all the story from the noble and learned Lord, or those who follow his argument, is that we are dealing with this matter right at the beginning of this group of clauses. My noble friend Lord Corbett has done a service by emphasising that, with no retrospectivity at all, the set of clauses will include a requirement to demonstrate new and compelling evidence to justify any retrial and—I am not sure that he emphasised this—establish that it is in the interests of justice. I forget which clause mentions the interests of justice but that would cover, among other matters, the concern of the amendment, which is to deal with retrospectivity.
	I am not one of those who thinks that, in every case that could come within the clauses, simply because the trial was in 2001 rather than 2004 there would be no hand on the shoulder. Therefore, I follow a great deal of the argument put by my noble friend Lord Corbett. Given what has to be established under the clauses to get a retrial, let alone the right of appeal if a retrial is granted, there are many safeguards. As subsection (6), with which the amendment deals, will apply to very few cases, we should not accept the amendment.

The Lord Bishop of Worcester: My Lords, I have been trying to work out whether it would be better to say nothing until the next debate. However, so many speeches have dwelled on the wider question of the clause that it is difficult to avoid the two issues coming together in our minds. The reason for that is that the principle of retrospection—looking back—is built into the whole subsection anyway. Much said by the noble and learned Lord, Lord Lloyd of Berwick, applies to that.
	I want to speak directly on the last two contributions. I hope that the House will forgive me if, as a layperson in matters legal, I speak somewhat personally. In the book of Anglican martyrs in Canterbury Cathedral is the name of Jonathan Daniels, a friend and fellow student of mine at theological college who was murdered in Alabama in the course of civil rights work in 1965. His death was followed by a trial that, by any standards, was a travesty. It actually tried him rather than his murderer. The person was, first, indicted only for manslaughter and, secondly, acquitted even of that.
	Noble Lords will know how intense are the friendships and feelings that arise in a student body. Our student body assembled the following autumn to face the reality of both the death of a friend and the acquittal—the final acquittal—of his murderer. I was the editor of the school journal. I still have the article that I wrote, and I still have deep inside me the sense that a deep injustice was done, and I would like that man got. That makes the argument for such a clause extraordinarily persuasive to anyone who has been through that kind of experience. Obviously there are people who have been through it with far closer friends or relatives—spouses, parents or children. Then I find myself thinking about what would be involved—giving a life sentence to acquitted persons.
	The last Archbishop of Canterbury but three, Lord Coggan, invited the nation to consider the kind of society in which we wanted to live. The most reverend Primate the Archbishop of Canterbury has raised that question for us all in his extraordinarily persuasive lectures and speeches. I need to ask myself the question: what kind of society will this create?
	The previous two noble Lords who spoke raised the issue of victims who see no one brought to justice. That is very searing as an experience. But we should be clear: hundreds and thousands of such people in our society have to come to terms with the fact that justice has not been done. That is not because of an improper acquittal but because the person has never been brought to justice in the first place, has never been brought before the courts in the first place or was never discovered in the first place. The experience of living with an unresolved crime is terrible but many, many people undergo it. This subsection will make a difference only to a small minority of such cases.
	I appreciate that the real issue is how we help such people to move on. It is also how we try to ensure that people are brought before the courts when they have committed crimes. That is a matter of policing and resourcing and so on, and of being tough on crime—if I may coin a phrase—and tough on the causes of crime. All those things arise in this issue. However, if we pass this measure, we shall give people the illusion that we are successfully doing something about unresolved crime when we shall actually be condemning to a life of fear people who have been acquitted.
	I have one more thing to say. I understand—I was told this; I do not know whether it is true—that certain noble Lords are minded to support the clause and to resist the removal of the subsection from the Bill on the grounds that the possibility of retrial will exist only for the most serious crimes. I find that totally illogical. It seems to me to amount to saying that if I commit a burglary or am a pickpocket and am acquitted, I am in the clear, but that if I commit a really serious crime, I shall never be in the clear. I am not talking only about me but about every single acquitted person.
	I know that the hurdles that have to be jumped are very high, but that will not be the perception of people who are likely to come within the frame of this measure. A person accused of murder or rape will live in fear. This provision is an incitement to gangs and enemies and to police and governments under pressure to bring forward cases that, in my opinion, should not be brought forward. I find this subsection, and in particular the retrospection involved in it, the most serious departure from the kind of society in which I wish to live.

Lord Donaldson of Lymington: My Lords, I find myself in great difficulty over this matter. From the moment I entered the law, I was brought up to believe that, once a man was acquitted, that was it. I have listened to the speeches supporting the amendment of my noble and learned friend Lord Lloyd. I am talking only about retrospectivity; the other matter is for later discussion and different considerations will apply.
	I have heard it said by one noble Lord—I forget who—that, once a man is acquitted, he is in the position of being found innocent. That underlies many of the comments in the media and it is wholly wrong. There is no room in the law for a verdict of innocence. In very rare cases, the evidence may prove beyond peradventure that a person did not commit a crime but, even then, the verdict is only—

Lord Judd: My Lords, I am grateful to the noble and learned Lord for giving way because I was the one who made the point. I simply ask him to comment on this: while the law may not declare a person innocent, according to the whole basis of our society and the values which underpin it, if a person has been found not guilty, he is innocent.

Lord Donaldson of Lymington: My Lords, that is a popular misconception which I have tried on various occasions to correct—but without the slightest success.
	Supporters of the amendment have said that we should take account of the views of victims. We certainly should treat victims with understanding, but I cannot believe that it is right that laws should be framed on the basis of giving victims satisfaction. That is not least because every victim, if almost anybody is charged, assumes with an utter conviction that that person is guilty. If he is acquitted the victim thinks that there has been a miscarriage of justice. But the real touchstone is whether there has been a miscarriage of justice. I have been involved in a couple of cases which have been described as classic miscarriages of justice. I say nothing about them—although I am tempted.
	However, I have said publicly that there are far more miscarriages of justice on the basis of wrongful acquittals than there are miscarriages of justice by wrongful convictions. I take account of the fact that the law is loaded to produce acquittals if there is any doubt. But we are considering cases of wrongful acquittals which can be demonstrated to be such. Against the principle of autrefois acquit we have a series of clauses, two of which matter. One is that one has to obtain the consent of the Director of Public Prosecutions before one can start on this road. The second is that one has to obtain the determination of the Court of Appeal in support of the DPP's view. Thirdly—what really matters—is Clause 64, which requires both the DPP and the Court of Appeal to look at the interests of justice.
	That clause is worth looking at because subsection (2) says that the matter has to be determined in the light of:
	"whether existing circumstances make a fair trial unlikely".
	An earlier intervention referred to the extent to which the media will hound people. We know that they will. I shall not name certain cases, but we all know cases in which the media, if they had the slightest chance, would require and demand a retrial of those people who have been acquitted. We know also that they would point out that out of a group of people, some were acquitted and some were never charged. The media will say that that creates a problem.
	The court would be bound to refuse leave if a fair trial was unlikely, owing particularly to the activities of the media—or for any other reason. Clause 64(2(b) provides:
	"for the purposes of that question and otherwise the length of time since the qualifying offence was allegedly committed".
	That is crucial. Let us say a person has committed, or is said to have committed, a crime 20 years ago—for instance when he was not a teenager but a youngster. If 20 years later it emerges that he was guilty, it would be wrong that he should be prosecuted again. That is one of the exceptions set out in the clause:
	"whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition".
	That describes cases in which it is said that the police, having investigated a case without due diligence or a sense of urgency, want a second go. They could not do that—unless the Court of Appeal takes leave of its senses, which is not an eventuality that I can personally admit—because the clause stipulates that leave could not be given in those circumstances.
	A further exception is to be found in subsection (2)(d) of the clause; namely,
	"whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition"—
	in other words, having found compelling DNA evidence, they cannot just sit on it and wait until it is convenient to them to apply for a further prosecution.
	I would hope and expect that if the amendment does not succeed—I am sure that it will—the number of retrospective cases in which this will be brought forward will be extremely few. If I were in the position of the noble and learned Lord the Attorney-General I would start by thinking of the cases which exist but which one could probably count on the fingers of one hand, of someone who, having committed a serious offence, then proceeds to proclaim the fact that he has. That seems to me to be an affront to the whole system of justice. Certainly, there should be the possibility of recharging him.
	As regards retrospectivity, I would then move on, but with very slow steps, to the DNA cases. The DNA cases pose a difficult problem. Unlike most other later discovered evidence, the DNA cases can be conclusive or virtually conclusive. Certainly I would want to look at that, but with care. Beyond that I do not think I can go and I do not believe that the noble and learned Lord the Attorney-General would go any further, although he obviously cannot be expected to give an undertaking to that effect. If he did, I do not think that the Court of Appeal would let him get very far. For those reasons, I have real doubts about the validity of the amendment, despite its provenance.

Lord Cooke of Thorndon: My Lords, I rise to make a simple point. I have listened, I hope carefully, to the debate having come to it without any firm view one way or the other. I am in sympathy with the general concept that for the future at least an acquittal should not always be sacrosanct; and that, in particular, if new and compelling evidence—which could not have been adduced at the first trial—comes to light, there should be the possibility of having a second trial if, in all the circumstances, the Court of Appeal thinks it just.
	However, the problem, as I see it, is the retrospectivity provision. Like the noble and learned Lord, Lord Donaldson of Lymington, I appreciate that there may be very few cases indeed in which the question of retrospectivity will arise although no doubt the noble and learned Lord, Lord Lloyd of Berwick, may well be correct in saying that there will be in existence a list of potential cases of that kind.
	Having listened to the arguments on both sides, superbly and eloquently put, I am left in considerable doubt about whether retrospectivity is justified. There is a basic aversion of the law to retrospective provisions, especially in the criminal field. Therefore, if one is left in any measure of doubt, the correct course, the principal course, should be to reject retrospectivity. It is for that simple reason that I support the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick.

Lord Thomas of Gresford: My Lords, we on these Benches support the amendment of the noble and learned Lord, Lord Lloyd, concerning retrospectivity. After all, what are we seeking? We on these Benches have conceded that, in very limited and narrow circumstances, there should be the opportunity to re-open an acquittal at some future time. But, in reaching that conclusion, one is trying to find a balance. Where is the public interest of balance between the interests of the victim and his or her family, the interest of the acquitted person, the use of judicial resources and the use of police investigative resources? We cannot re-open everything.
	The noble Lords, Lord Corbett and Lord Borrie, asked how one can justify the retrospective, or the prevention of retrospective, consideration. My answer is that not every acquitted person is actually guilty. That seems to be something that is sometimes forgotten. There are a great many acquitted people who are innocent. The day after this Bill is passed, the day after that dividing line in time, those people will wake up to understand that from now on they have to look over their shoulder. There is a possibility that the acquittal on which they have relied and on which they have rebuilt their family and their world no longer counts for what it did.
	So, it is one thing to say to a person who is to be acquitted in 2004, "Well, you must realise that there is a possibility that at some future date your acquittal will be re-opened", and a totally different matter to say to people who have rebuilt their lives, "I am sorry, as from 1st January 2004, your life may be shattered by an investigation and by a possible prosecution, even though you are actually innocent".
	I want to make another point. The noble Baroness, Lady Kennedy, talked about finality. I think that was in the sense of finality for the defendant, that he knows where he is. But none of us who practise in the criminal courts can avoid the scene in the public gallery of the family of the accused—very concerned and worried—and also the family of the victim, or the victim himself or herself. They are under considerable strain. It may take a year or 18 months for a trial to come to a hearing and for there to be a conclusion.
	At the end of that time there is a decision and people come to terms with that decision. The families of victims and the victims themselves have to come to terms with that decision and to rebuild their lives. What I fear from these provisions, if they are retrospective, is not so much the media hounding a particular person who has been acquitted, but the victim and the families of the victims continuing to press for more investigation, more evidence to be gathered and for the person to be brought once more before a jury. The fact that they will not receive finality in their lives is also a matter which has to be put into the equation when considering public interest.
	So, whereas on the one hand it may seem wrong that we should ignore those well-publicised cases where people have boasted of the fact that they were guilty when they were acquitted, nevertheless, taking the whole picture in terms of where the public interest truly lies, we must, in our submission, accept this amendment.

Baroness Anelay of St Johns: My Lords, I recall that we debated this matter at some considerable length, and with the same amount of deeply and sincerely held passion, more than three months ago at a similar time of day on another Thursday. I am also aware of the rules that, in particular, as a Front-Bencher, I must adhere to. The Companion states:
	"Arguments fully deployed in Committee of the whole House should not be repeated at length on report".
	If I do, my own Chief Whip will have my guts for garters, and I do not want that. I will not repeat all the reasons why I cannot support the amendment, which I gave when I spoke at length on 17th July, as reported in Hansard at cols. 1069–70.
	In summary, we on these Benches, in another place and in this House, accept that there should be some relaxation of the double jeopardy rules and that that relaxation should apply to those already acquitted. We accept the argument put forward by the noble Baroness, Lady Whitaker, that it is not retrospection in the sense commonly understood by the public.
	I also endorse the remarks of the noble Lord, Lord Corbett of Castle Vale, who encapsulated the arguments that I put forward in July on the importance of ensuring that, if anybody is to have that tap on the shoulder, we must provide every safeguard to ensure that it will be the right person—the acquitted person who perhaps should not have been acquitted. Since July, I have looked carefully at the safeguards that should be incorporated within this part.
	The same amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, was tabled in Committee in another place by my honourable friend Dominic Grieve. That was a purely probing measure, as he made clear. It was as a result of listening to the arguments adduced at that time, and to those adduced in this House in July, that we looked again carefully at our position and decided that we would not resile from it and that we would continue to oppose the amendment.
	It grieves me much that, on this occasion, I do not agree with my much respected colleagues and, I hope, dear friends, the noble Lord, Lord Renton, and the noble and learned Lord, Lord Mayhew of Twysden. If there is to be a Division, my noble friends on the Front Bench and I will support the Government in the Lobbies.

Lord Goldsmith: My Lords, the noble Baroness, Lady Anelay, has rightly reminded us that on Report we should not repeat arguments fully deployed in Committee. One was privileged to participate in the debate in Committee, which involved many noble Lords from the law—including former judges—those from the Church and others with experience.
	The noble Baroness, Lady Anelay, is right to say that there are strong and sincerely held views on the principle of double jeopardy. The Government have made clear their determination to change the rule relating to double jeopardy and have the support of the Law Commission, Lord Justice Auld and the Home Affairs Select Committee, to which the noble Lord, Lord Corbett of Castle Vale, has referred. All of them agreed with the principle of change.
	I remind myself that the amendment relates not to the principle but to this: if there is to be such a change, should it be something that can relate back or that can only relate forward? Despite the eloquence of those such as the noble and learned Lord, Lord Lloyd of Berwick, who oppose what is described as retrospectivity, the Government do not accept the amendment and the removal of the clause. It would simply provide an arbitrary cut-off point before which cases could not be brought to justice.
	There were powerful speeches today. I single out, in particular, the contributions of my noble friends Lady Whitaker and Lord Corbett, who talked about justice, as did the noble and learned Lord, Lord Donaldson.
	In the Government's view, and in my view, disallowing a retrial in serious cases when there is compelling new evidence, such as DNA or even a confession, which indicates that an acquitted person is in fact guilty of a serious crime committed some years ago, is illogical and unjust. It would be an affront to justice.
	As my noble friend Lord Corbett said, retrospective application of these changes was supported by the Home Affairs Committee and the Law Commission. That gives me the opportunity to deal with an important point raised by the noble Viscount, Lord Colville, about Article 7 of the European Convention on Human Rights. Unhesitatingly, I say that there will be no contravention of Article 7 of the convention if this subsection remains.
	That was the view of the Law Commission. I have here the report produced by the Law Commission, which, as noble Lords will know, was chaired by a High Court judge at that time, the honourable Mr Justice Carnwath, with distinguished academics. They looked carefully at the issue. Having said that in policy terms they thought that the arguments in favour of giving the exception retrospective effect were powerful, they went on specifically to deal with Article 7.
	I shall touch on that issue for the benefit of those noble Lords who raised it, including my noble friend Lord Clinton-Davies. Article 7 prohibits the creation of retrospective offences by legislation—the principal purpose—or to change the penalty. But it does not prevent retrospective changes in the rules of criminal procedure so as to remove a bar or obstacle to a prosecution. That is clear from European jurisprudence. It is set out clearly in the report of the Law Commission, which was very clearly of the view that it did not contravene Article 7.
	There is no question of creating a new offence. We are talking about prosecuting someone for something which was an offence at the time, such as murder. We are not suggesting that they should be subject to a different penalty from the penalty to which they would have been subject at the time. It is the question of a procedural bar which exists at the moment. Removing that is not a breach.

Lord Thomas of Gresford: My Lords, perhaps the noble and learned Lord will forgive me for pointing out that prosecutions will be made under new rules of evidence and in a different context altogether.

Lord Goldsmith: My Lords, that still does not contravene, in any way, Article 7 of the European Convention on Human Rights. It is not concerned with changes in procedural rules, but with prosecuting someone principally for something which simply was not an offence at the time that it was committed. I am sorry that the noble and learned Lord thought that I did not give him a satisfactory answer on the previous occasion. I believe that I did address this issue as a matter of principle. It is not contrary to the European Convention on Human Rights. As a matter of justice, while recognising the strength of the arguments the other way, the Government take the view that where compelling new evidence comes forward, it is just that people who have committed crimes should be subject to the possibility of a retrial.
	There are important safeguards. The noble and learned Lord, Lord Mayhew of Twysden—

Earl Russell: My Lords, the noble and learned Lord referred just now to people who have committed crimes. Is that compatible with the presumption of innocence?

Lord Goldsmith: My Lords, I thought it was clear. If someone had committed a crime—I am not referring to any particular individual—and the Court of Appeal, the Director of Public Prosecutions and the police believe that there is new and compelling evidence, and the Court of Appeal and the DPP regard a retrial as in the interests of justice, a retrial should take place. I entirely agree that on that occasion, it will be for the jury to determine whether the person was guilty.
	On the previous occasion, my noble friend Lord Brennan also powerfully pointed out that the interests of justice, looked at from the point of victims, required and justified the provision being retrospective. I agree with him that if someone who had been in prison for 15 or 20 years could be released because DNA evidence showed him to be innocent, then if compelling new evidence comes forward that suggests that a person who was acquitted of murder 15 or 20 years ago may be guilty, the community would say that it is unjust to allow such a person to avoid a retrial and possible conviction under the provisions.

The Lord Bishop of Worcester: My Lords, I apologise if my question arises from my ignorance of procedures and practice, but presumably, because the acquittal will have been a public event, the jury in any new trial will know that the Court of Appeal has judged that there is new and compelling evidence that could not have been available at the time. If I am wrong, please tell me. If the jury knows that, how can they approach the evidence in a dispassionate way? They will know that three learned judges of appeal have made their judgment about the evidence.

Lord Goldsmith: My Lords, the right reverend Prelate raises a point that, with respect to him, goes beyond this amendment to the question of the principle of double jeopardy, which we will come to in later groups. There are publication provisions and reporting restrictions that will protect, and the Court of Appeal must always be satisfied that a retrial would be in the interests of justice. That does not affect this provision.

Lord Neill of Bladen: My Lords, I thank the noble and learned Lord for giving way. I know that this is trespassing on a further part of the Bill, but is not his response completely unreal? We can imagine that, in some of the cases that come up for retrial, there will have been a public clamour, television programmes, newspaper articles and relatives groups whipping up interest. The person who is accused will be perfectly well known—his face will have appeared regularly. The jury in charge of trying him for a second time will know perfectly well that the Court of Appeal must have cleared the case. Juries are quite smart these days.

Lord Goldsmith: My Lords, I remind the noble Lord that this is Report. He raises a point that does not, with all respect to him, go to the question of whether this amendment should be agreed. The premise is whether the provision should be retrospective.

Lord Judd: My Lords, I am very grateful to my noble and learned friend for giving way. He has addressed this issue, as have others of my noble friends and, of course, I understand the feeling, concern and genuine commitment in this direction. However, while we consider the position of people who have—and know that they have—committed a crime, who have been acquitted and then subsequently find when they wake up after this Bill has been passed that they have not got away with it, what about the many people who have been acquitted in the past? Very often, the reason that they were in court was because they were vulnerable, inadequate people. What is their position when they wake up the day after this legislation has been introduced and find that something that they thought, with justice and truth, that they had put behind them is now uncertain? We must weigh that in our considerations as well.

Lord Goldsmith: My Lords, on the last occasion, the noble and learned Lord, Lord Lloyd of Berwick, gave the example of a man who was acquitted of a murder of which he was in fact guilty. That was the noble Lord's premise. The man later admitted the offence to his wife. I gave the example of a man who was acquitted of a murder and subsequently bragged that he was guilty. In both those cases a murder was committed and the murderer walked free from the original trial. If there is new and compelling evidence, I do not see the injustice, subject to the safeguards that we have discussed, of that person being brought to book.

Lord Lloyd of Berwick: My Lords, I am grateful for the support that this amendment has received from lawyers on all sides of the House and, above all, for the support that it has also received from laymen. There is no principle question of law involved here. This is simply a question of justice. To the right reverend Prelate the Bishop of Worcester I say that the problem of retrospection will not apply as he thought it might in the case of those who are acquitted in the future, because they will know that acquittal does not mean that they cannot be tried again. Therefore, there is no unfairness or injustice. The injustice applies to those who were acquitted in the past and who have lived in the belief that they could never be tried again. That is what sticks in my gullet, if I may say so, and that is why I wish to divide the House on this issue.

On Question, Whether the said amendment (No. 143) shall be agreed to?
	*Their Lordships divided: Contents, 45; Not-Contents, 68.

Resolved in the negative, and amendment disagreed to accordingly.

Baroness Kennedy of The Shaws: moved Amendment No. 143A:
	Leave out Clause 60.

Baroness Kennedy of The Shaws: My Lords, this set of amendments stands in my name and that of the noble Lord, Lord Neill of Bladen. I am happy to be in such esteemed company. The noble Lord—who will of course in turn speak—and I believe that this is a matter of principle. Removing the rule against double jeopardy is of such consequence that we feel strongly that it should be marked and not just go by on the nod.
	Your Lordships have already heard a full debate that has roamed beyond the issue of retrospection. I do not intend to rehearse those arguments, but I am concerned that the House should be aware that there are difficulties surrounding what will constitute new evidence. Reading the Bill, it seems clear that "new and compelling" evidence will basically be any old evidence—evidence that was available but which, because of poor prosecution or investigation, the police failed to procure until the second time round. We submit that that is the wrong way to conduct a justice system.
	I am concerned that that will create insecurity—as has already been said so beautifully by the right reverend Prelate, and that we are creating a life sentence for acquitted people. That is what is so wrong in principle. We should ask what kind of society we intend to create. I submit that the provision will create a society with real uncertainty for people. We are undoing the glue that makes this country the place in which we all choose to live. I regret that our liberties are being so readily ceded by this Government. That is a source of sadness and profound regret to me. I beg to move.

Lord Neill of Bladen: My Lords, I support this group of amendments. We are told that it is procedurally necessary to move a raft of amendments to achieve one simple aim: to scrap Part 9. Apparently it is impossible simply to have a part omitted; hence this long string of amendments, but they are all directed to sweeping away every provision in the Bill that would alter the double jeopardy rule. All the arguments have been rehearsed, so I shall be brief.
	Double jeopardy is an ancient principle. It is one of the big principles of English criminal law, as is the presumption of innocence. It is as deeply embedded as that. It is founded on the principle that guilty people will be acquitted, but that it is better to have such a principle than to run the risk that people who have been acquitted can be tried again in any circumstances.
	We are here faced with a partial erosion of that great and ancient principle. It is partial because, as I read it—I shall be put right if I am wrong—it is directed to crimes of violence. No crimes of fraud—however grave; however grievous the consequences; however many people are ruined and made bankrupt—nor crimes of blackmail leading people to suicide, matter. The provision applies only to crimes of violence. By saying that, you see at once that it is a populist measure. It is being introduced because some murderer has been acquitted and has thereafter boasted of what he has done. It is limited, in the hope of making it more palatable, but it is unprincipled, being partial.
	It is the destruction of an ancient principle. Finality is a great, desirable end. We must recognise that for these specified Schedule 4 crimes, every acquittal from now on is provisional. In fact, as a result of the last vote on the amendment of my noble and learned friend, Lord Lloyd, not only will acquittals be provisional in the future, but every past acquittal is provisional and can be reopened. That will come as quite a shock to people.
	When the prosecution decides that it will institute this procedure, it applies to the court for an order, part one of which is that the original acquittal be quashed. Then a notice of that application is served on the happily acquitted man, accompanied by a piece of paper charging him with the original offence. Imagine that if you have been acquitted in a long and horrendous murder trial—let us assume, for once, that the accused is innocent. Years later, a charge is delivered and served on you saying that you are now being prosecuted for the murder of which you were formerly acquitted.
	If we take this step we are moving out of line with other great common law jurisdictions, including Australia and the United States of America. So far as the parties to the European Convention on Human Rights are concerned, there is a protocol which permits a derogation from the general principle of no derogation from the double jeopardy rule. You can sign up to a protocol saying that it is the intention of your state to make a derogation. Let me outline my understanding—again, I will be corrected. I see the Attorney-General shaking his head. We have had many encounters in the past, in courts and elsewhere, and when he shakes his head it is something to tremble at. My understanding is that only in the case of Finland has such a signature to a protocol been made.
	I drew attention at Second Reading to the point that the definition of new evidence is so extraordinary that it covers old evidence—evidence that could have been in existence long before. To make such a measure palatable it has to be made attractive by saying: let us suppose new DNA evidence comes to light. But the clause is not drafted in that way, as we will hear in another amendment dealing with this point.
	New evidence is not confined to new scientific evidence. It will cover the case of a prosecution witness who was available to be called on the first trial—witness number three, say, who was an eye witness to the offence—but who was still in a state of trauma. The prosecution decides not to call that witness, because something might go wrong on cross-examination. Under this definition of new evidence, that witness could be called; there would be a retrial, the only difference being that the third witness is now called in addition to the other two. There could be a replay of the old trial, plus an extra witness. This is a very undesirable development in the law.
	I drew attention last time to the likely consequences. When speaking a little while ago, I referred to campaigns against a man who has been acquitted. I have some little experience; as I mentioned then, I was, once upon a time, chairman of the old Press Council. We dealt with the moors murderers and other insalubrious cases. It is easy to foresee that media campaigns will be whipped up against a person who has allegedly committed some vile rape, murder or serial murders. We have seen examples of that. One has only to watch television for a week to see some investigation of either an alleged crime—or a past acquittal, as it will now be. A frightening and alarming future faces us.
	I do not want to trespass on another point, but I made it earlier. There are provisions for the Court of Appeal to say that, when an application has been made for a retrial and has succeeded, it is not to be reported in any form of publication, even by word of mouth, to the public at large or to a section of public. The provisions say that it can be blanketed out—but in the real world, if there has been a campaign, everybody will know perfectly well that the campaign has succeeded and, hooray, there is going to be a second trial. That will lead to highly undesirable consequences, given the media world in which we live, which reinforces why the old principle was so good. There would be occasions when an acquittal was not justified, but that was preferable to the system now being recommended by the Government.

The Earl of Onslow: My Lords, when I was a small boy, I learned history from an extremely attractive history master. One of the first things that we were taught, when I was about 10 or 11, was about habeas corpus. He said in the classroom that the point about not being able to be tried twice for the same offence was that one could go into the pub and say one was guilty and there was nothing they could do about it. That was held up as an example of British justice.
	Mr Ling is long dead, so he did not write the script for the noble and learned Lord the Attorney-General, who said more or less exactly that on a previous amendment, and how disgraceful it was. However, we must not tamper with old liberties; they are too precious and valuable. We gave the police powers under the Terrorism Act, and they have abused those powers—or it is alleged that they have abused them—over the demonstrations over the arms trade fair in the Docklands. If I were as confident in the police as I would like to be—and we have had too many instances of the police not being as good as we would like them to be—even then I would not be happy with the idea of having another trial for the same crime.
	Let us assume that person X has committed a peculiarly foul crime, and the prosecution bog it up. Then they come along with some new evidence and up he goes again for the second time, the prosecution bog it again, and he gets off a second time. Is he going to be allowed to be prosecuted a third time? Even if that is a possibility, I would hate to see it. We are talking about old liberties, and old liberties are very precious. As the noble Lord, Lord Neill, said, other common law traditions are not going down this road, and I very much hope that we will not do so either.

Baroness Gibson of Market Rasen: My Lords, I am not a lawyer, so I cannot argue as one, but I want to direct my few remarks to the question of public confidence in the criminal justice system. I speak in favour of the proposals for retrial and in opposition to the amendment.
	The provisions are for specific circumstances for serious offences. They uphold the public interest by ensuring that those who have committed serious crimes are ultimately convicted of them where new evidence comes to light, whether as a result of technological advances or because it was not available at the time of the original trial.
	I do not believe that it is right that a new trial should not be able to take place. It not only undermines public confidence in the criminal justice system but leads to justice not being served. The vast majority of people in this country want to have confidence in the criminal justice system, and the clause will help them to do so. People are bewildered when acquitted people themselves admit afterwards that they have committed a crime and nothing is done about it. They do not understand why nothing can be done under the current law.
	There are strong safeguards surrounding these retrial proposals. I believe that they are sound and sensible. That is why I shall oppose the amendment.

Lord Judd: My Lords, I should like to follow on exactly what my noble friend has just said because she is a colleague for whom I have a particular warmth and respect. I simply ask her to reflect that probably nothing will do more to build public confidence in our system of the administration of justice than to ensure that we have first-class police, properly resourced, doing their job well; that court proceedings are effectively handled; and that convincing results are reached in the courts. Again, I understand the pressures under which the Government are working. However, I suspect that if we were to succumb to what we are being invited to endorse by the Government, it would perversely undermine public confidence. There would be a feeling that it does not really matter what happens in a given case, there is always a chance of another case being brought.
	The police force is a very big organisation. I think that we have a very fine police force in this country, but it is not a perfect police force in many respects. Some players are stronger than others. I am worried that the provision might inadvertently encourage the career-minded opportunist policeman to go for a quick conviction without doing the work as thoroughly as it should be done in the knowledge that if a conviction was not secured the case could be pursued at a later stage.
	I think that the noble Lord, Lord Neill of Bladen, made a most important point. All this would not be happening in a vacuum. It would very often be happening in the context of a great deal of media attention and media agendas. I think that it would be very unwise to ignore that.
	The main point that I want to make is to take up a comment that the noble Lord, Lord Thomas of Gresford, made on a previous amendment. He very wisely spoke about the importance of balance and recognising that we had to balance different considerations in this context. Of course we must feel for the victims. Of course we must feel for the relatives, families and friends of the victims. We would be a pretty sick society if we did not. All of us have that responsibility. However, if we believe that a fundamental principle of our society is a presumption of innocence unless one is proved guilty, one of our most important responsibilities as legislators is to protect the innocent.
	As those of us who have been engaged in one way or another in social work know, very frequently those who end up in courts are inadequate and vulnerable people. They are very fearful and anxious people. If we are looking at the balance, we have to weigh against the need to be able to secure a guilty verdict against those who very clearly and beyond doubt committed a crime about which new evidence has become available—all of which is a very powerful and persuasive argument which of course I do not dismiss out of hand—the very considerable number of people who are innocent but who will for the rest of their lives never feel that a line has been drawn under their innocence. At any stage, because some journalist worked up interest or some vindictive policeman—God forbid that we have many—decided to pursue a case or vindicate a position that he or she may have held earlier, the case could be reopened.
	The question is what kind of society we want to live in. If we really do see the presumption of innocence as a fundamental pillar of the free society in which we wish to live, we have to be prepared to pay some price for it. I really believe that if we move into the other situation—this is what I meant about the whole culture of our legal system and society beginning to be changed by this Bill—we move into a much more uncertain, anxious kind of society; the kind of society I never want to see the United Kingdom become.

Earl Russell: My Lords, I rise wearing my historian's hat. Although it is a private hat, I have not forgotten that I am a Liberal Democrat. Listening to this amendment I recall a particular member of my post-graduate seminar who happened to be a historian of the law. His specialist interest was in the Yorkshire assizes of the 1640s. He was a scholar of very considerable promise and, so far as I could judge, a nice, warm-hearted and generous man. He also happened to be an Irish republican brought up in west Belfast. At the age of 18 he had been tried for the murder of a policeman and was acquitted.
	As the release of Mr Silcott has recently reminded us, the police tend to have very strong feelings about the murder of policemen. It is quite right that they should and I am glad that they do. However, it is the basic principle of the law that having strong feelings about something is not a substitute for a legal verdict.
	That man found that whenever any petty misdemeanour happened anywhere in his neighbourhood the first thing the police did was question him. I am not particularly surprised by that; he was not particularly surprised by it. He was not even—which does him credit—particularly annoyed by it. He thought that it was what he might have done in their position and was prepared to be sympathetic. But imagine that man's position were this Bill to become law. He would never be safe at all, and he was doing his level best to live as an honest, hardworking, careful historian who quoted his evidence accurately. The point about the uncertainty hanging over people cannot be better made than it is made by that case.
	The noble and learned Lord the Attorney-General talked of people who had bragged of having committed murder. I agree that that causes offence but I ask the noble and learned Lord whether he believes that everyone who brags of it has committed a crime? Take the 17th century ranter, Lawrence Clarkson, who bragged of having slept with 365 women. I find the date too coincidental to be entirely credible. Many people have bragged of things and not all of them are guilty of them. It is important that we should not take the bragging alone to be sufficient proof that they have done it; we need evidence.
	The noble Baroness, Lady Gibson of Market Rasen, said that the measure undermines certainty. It does, but people being convicted of crimes of which they are not guilty does so, too. You cannot have complete certainty in justice so long as it is administered by human beings. I do not wish it to be otherwise. If, for example, you read Measure for Measure, you see that there is virtue in human imperfection as well as fault. Granted the point of the noble Baroness, Lady Gibson, is correct, our choice is simply, which mistake would we rather make? Are we going to make the mistake of an occasional unjustified acquittal, flourishing like green bay trees as psalmists would have it, or of the occasional unjustified conviction? Like the noble Lord, Lord Judd, I know what my preference is.
	I think also that we neglect at our peril the principle of certainty in the common law. When I refer to Chief Justice Coke I do not refer to the noble and learned Lord, Lord Cooke of Thorndon, great though my respect for him is, but to Sir Edward Coke, a 17th-century chief justice. His central maxim was:
	"Miserable is the servitude where the law is wandering or uncertain".
	If every time that we are acquitted our acquittal is wandering or uncertain, we are giving a very severe blow to the principle of legal certainty. If anything undermines respect for law, that would do it. I am very happy to support the amendment.

Lord Clinton-Davis: My Lords, I am very sorry to depart from the opinion of my noble friend Lady Gibson of Market Rasen on this occasion, but the argument about public confidence can be woefully overdone. After all, public confidence would be immeasurably in favour of restoring the death penalty, even today. That would be a grotesque error. Public confidence is important, but it should not be overdone. The Government, whom I generally support, have overdone the principle of public confidence on this occasion.
	On questions of crime and punishment, it is generally wise to support those who have some experience. The public do not have that, by and large. Therefore, there is some inconsistency. My noble friend would be the first to support the view that I have advanced that capital punishment is and should be unattainable. She nods her head. That is the view of the Government as well, but is there not some inconsistency between the measure and what I have talked about?
	My second point is on harassment. It will be very dangerous to have a second trial where the person charged and acquitted in the first will be harassed, as undoubtedly in some instances they will be. It is not part of my case that harassment will be present in every instance, but it will be present on some occasions. It is immeasurably dangerous that that situation should prevail.
	I have been a solicitor for quite a long time—about 50 years. Part of that time, I was involved as an advocate—a rather successful one—mostly around the London courts. I never thought about the guilt or innocence of the people whom I was defending, as I am sure is the view of all lawyers. But I believe that if this provision is incorporated in the law, inevitably there will be a danger that lawyers will think about that. Even if I am wrong and that argument can be dismissed, any question of a campaign against a minority of people is unthinkable.
	Therefore, I believe that a second trial would be immensely dangerous. It would inevitably become known that the defendant had been before the Court of Appeal and the Criminal Division of that court had said that there was something wrong with that person and that there should be another trial. I find it unthinkable even to contemplate that possibility.
	My last point is that I believe that the clause as presently drawn will encourage sloppy and undesirable policing. The police will undoubtedly be encouraged by the fact that there is a possibility of a second trial. Although, again, I believe that only in a minority of cases will the police behave in the way that I have indicated, so far as I am concerned even a minority of cases is unacceptable. Therefore, rather reluctantly, because I am always reluctant if there is an occasion when I have to vote against my Government—the Government whom I generally support—I shall vote against them on this occasion whether we lose or win the vote.

Lord Donaldson of Lymington: My Lords, we are now in injury time. I shall make two points and do so very briefly. The first is that I fully accept that it is a fundamental tenet of English law that someone is innocent until proved guilty. I go further and say that, if that principle can be strengthened, it is strengthened when someone is acquitted. For that reason, even at this late hour, I hope that the noble and learned Lord the Attorney-General will consider at Third Reading whether Clause 61 should be amended.
	Clause 61 deals with two different categories of case. One is where someone is acquitted in England—including Wales for this purpose—and the other is where he is acquitted elsewhere. Where he is acquitted elsewhere, there is no attempt to set the acquittal aside—it is accepted. But the question that the court must decide is whether in exceptional circumstances that acquittal should be a bar. That is what should apply in English cases.
	In my view, when someone has been acquitted, he is entitled to say, if he wishes, "I have been acquitted; I am acquitted; I am still acquitted. The sole question is whether that acquittal will prevent me hereafter being convicted", and it is the Court of Appeal and so on which must decide that. I do not like the way in which the acquittal is quashed before the evidence has been heard. It would be far better to deal with it the other way. That is the first point.
	My second point is that all the arguments against double jeopardy have centred on matters which are dealt with in Clause 64. In every case, whether it is inefficient or sloppy policing or media pursuit, those matters are dealt with in Clause 64(2). Of course, I respect the experience of the noble Lord, Lord Neill, but if this provision is passed, as I hope it will be, the media will have to think very carefully before they start a campaign to have someone's conviction set aside. If they do it with their usual enthusiasm, they will ensure that the Court of Appeal refuses leave on the grounds that it is no longer possible for the accused to have a fair trial. Faced with that dilemma, I have a nasty suspicion that the media will continue to pursue. Therefore no question of a second trial will arise. But I may be wrong about that.

Lord Cooke of Thorndon: My Lords, given the observations of the noble Earl, Lord Russell, I should offer at least some reply on behalf of the Cookes. As the noble Lord knows well, Sir Edward Coke was a strong believer in the force of the common law. He believed that the common law could control even Acts of Parliament. I do not wish to enter into that debate this evening. I simply say that the common law would not be infringed by the measure which the Government are proposing—at least regarding the future. We are not concerned now with the element of retrospectivity. It is consistent—

Earl Russell: My Lords, the noble and learned Lord quoted Sir Edward Coke as saying that in some cases the common law will control an Act of Parliament. In fact he said that some say that the common law may control an Act of Parliament. I have argued in print that that opinion is obiter; it is not central to the judgment.

Lord Cooke of Thorndon: My Lords, I defer to the noble Earl's infinitely greater knowledge of the subject and will refrain from entering into that in any more depth. Whatever view is taken of that question, on the issue of whether the proposed legislation is in any way contrary to the spirit of the common law, that is not so as far as concerns the future. Surely, it is consistent with the common law that in future a person accused of a crime should know that if he or she is acquitted there may nevertheless be perhaps a slight possibility that he or she may be retried if new and compelling evidence emerges and if a fair trial can be had. There is nothing abhorrent to the common law principle—the principle of autrefois acquit, as I was always brought up to say—because that is a known possibility that the possible offender faces. That is entirely different from the situation of somebody who has been acquitted in the past on the understanding that that is final, and is now suddenly faced with the prospect of a retrial owing to legislative change.

Lord Mayhew of Twysden: My Lords, I hope that it is not to add insult to injury time for me to add to this debate, even by the short contribution I propose to make. I believe that all institutions, being mortal, are accordingly imperfect. I do not believe that the dilemma which rightly has been occupying us for the last three quarters of an hour is capable of being perfectly resolved. In that I respectfully follow the noble Earl, Lord Russell. We cannot achieve perfection—that is to say a resolution of the dilemma in a way which would be certain to lead to a perfectly just result in every case.
	I have asked myself why our forebears have held to the principle for so long that one bite is all that one gets if one is the prosecutor. I believe that that derived from the recognition that the exercise of the prosecuting arm of the state is intensely invasive of personal liberty and wellbeing. Never mind that it ends up in an acquittal, as it frequently does because of the burden of proof. That will take place, typically, not months but years after the prosecution process has begun in the course of which liberty has been curtailed or there has been bail; everyone is saying, "There is no smoke without fire"; and for a police officer there may be suspension, sometimes for years. I believe that that is why our forebears have held to this.
	I have asked myself whether that is sufficient reason for retaining it today, and I believe that it is. The prosecution has the whole panoply of the state behind it. Certainly, there is the burden of proof, but by starting prosecutions they can invade the liberty of the individual to a ghastly, albeit a necessary, extent. Is it necessary twice? I cannot believe that it can be right, in the language of the right reverend Prelate, to impose a life sentence upon someone who, indeed, may have been innocent and rightly acquitted. That is the high watermark of this argument. I believe that it is a point that has not been reached by the arguments, with which I deeply sympathise. Anyone who has been a Member of Parliament for many years, as a number of us have, knows the depth of feeling on the other side of this argument. However, it is the duty of this House, where we do not have to deal with the pressures of constituencies, to look ahead right down the line to the likely and foreseeable consequence of what we may achieve with the Bill as it stands.
	I believe that right-thinking people will deeply regret the day that this constitutional principle is abandoned, if that is, indeed, what happens.

Lord Goldsmith: My Lords, we have debated at length on this occasion, as I believe we did in Committee, important points of principle. Distinguished lawyers are divided on this issue, as we have seen today. However, others have demonstrated that lawyers have no monopoly on wisdom, no monopoly on what is the sense of justice of the community or on what will give confidence to the community in the justice system, which is for everyone and not just for the lawyers.
	For that reason I very much commend to your Lordships what was said by my noble friend Lady Gibson of Market Rasen, which was simple, clear and compelling. It represents in essence why the Government accepted recommendations which were successively made by the Macpherson report into the Stephen Lawrence inquiry, by Lord Justice Auld and by the Law Commission that we should bring in this exception to the double jeopardy rule for very serious offences. The Home Affairs Committee also supported it. A large body of people have very carefully considered this matter, weighed up the arguments on both sides and come down in favour of this exception.
	We do not expect these reforms to apply other than in exceptional circumstances. Perhaps I may say to the noble Lord, Lord Neill of Bladen and, indeed, to the noble Earl, Lord Russell, that it will not be the case that every person acquitted will fear the possibility of a further trial. That is simply not the position. However, we believe that the existence of the power will benefit justice. It will strike the right balance—balance it has to be—between finality and the public interest in ensuring that those who have committed the most serious offences can be brought to justice.
	Because we have debated the issue, I hope that noble Lords will forgive me if I do not deal with all the points raised. I think that that would be wrong because the arguments have been clearly set out.
	We have thought hard about many of the points raised and have therefore introduced safeguards, as noted by the noble and learned Lord, Lord Donaldson. The Director of Public Prosecutions and the Court of Appeal will require to be satisfied that there is compelling new evidence against a person. The Court of Appeal will have to consider a retrial to be in the interests of justice.
	I say to the noble Earl, Lord Onslow, because it appears on the face of the Bill in Clause 61(5), that a person can be subject to this procedure only once. There is no question of going back a second time. The matter goes further; we have also included provisions to prevent the kind of harassment referred to by one or two noble Lords. So, under Clause 69, police officers will not be able to arrest or question a person who has previously been acquitted, to search him, his premises or a vehicle owned by him or to take his fingerprints or a sample from him in connection with this offence without the consent of the Director of Public Prosecutions.

Lord Neill of Bladen: My Lords, I thank the noble and learned Lord for giving way. Will he tell the House what Clause 61(5) means? It states:
	"Not more than one application may be made under subsection (1) or (2) in relation to an acquittal".
	Surely, you can have only one application for the first acquittal. You can have another application in respect of a second acquittal. That was the point of the noble Earl, Lord Onslow. This could go on progressively.

Lord Goldsmith: My Lords, no, that is not the intention, nor can it be the construction of the Bill.
	My noble friend Lord Judd raised a point. I am sorry to differ from him as I am from my noble friend Lord Clinton-Davis. We can see no reason why having a tightly drawn exception to the double jeopardy rule would cause the police to be anything other than scrupulous in their investigation, but we have provided a number of important safeguards to prevent the police relying on a second bite of the cherry. The Court of Appeal has to be satisfied that it is in the interests of justice. In Clause 64(2)(c) and (d), the court has explicitly to consider the extent to which the officers or prosecutors have acted with due diligence or expedition. All that has been taken care of.
	On reporting—the right reverend Prelate referred to the issue in a previous group of amendments—juries can and do cope when properly directed. I am afraid that at the moment it happens all the time. We have carefully considered the issue of publicity. The Court of Appeal must take that issue into account when deciding whether a fair trial is possible, as the noble and learned Lord, Lord Donaldson, said.
	Clause 67 goes further and imposes particular reporting restrictions so that the interests of justice can be safeguarded by the time the matter gets to the Court of Appeal.

The Lord Bishop of Worcester: My Lords, I am grateful to the noble and learned Lord the Attorney-General for giving way. The puzzle I have—and it seems to be a paradox of his position—is that the higher the hurdles which this case has to jump, that is to say the more stringent the tests applied by the Court of Appeal, the more likely it seems that members of a jury will feel that this case has been incredibly carefully investigated by enormously learned persons. Therefore, they would need extremely good reasons to dissent from the judgment of the appeal judges.
	Perhaps the noble and learned Lord will explain the matter if I have it wrong. To me, the issue is not one of publicity; it is not the issue of reporting; it is simply the issue of the fact that this case will have been so carefully assessed by the Court of Appeal, which has judged the evidence to be new, compelling, and not to do with sloppy investigation and all the other aspects the noble and learned Lord has, I am sure, quite correctly and sincerely, outlined. How will members of a jury put that out of their mind and come to the question fresh?

Lord Goldsmith: My Lords, it is because of the question of publicity that Clause 67 specifically provides that the Court of Appeal will have the power, by order, to prevent the matter being reported if it believes that that would give rise to a substantial risk of prejudice. If the order is made by the Court of Appeal, the jury will not know that it has been made; nor will it have seen what was debated during the hearing. If the Court of Appeal, having considered the publicity, is satisfied that it is in the interests of justice, trial judges will direct juries that they must have regard only to the evidence presented to them.

Lord Wedderburn of Charlton: My Lords, I am grateful to my noble and learned friend for giving way. I appreciate what he has said. The best has been done in the Bill to try to stop publicity, as he calls it. In the real world, what will stop it being like the posting of names of football players all over the web? Will the Court of Appeal be able to stop that? No. Will the jury know? It is the net that matters, not the media.

Lord Goldsmith: My Lords, orders will relate to publicity generally. If the noble Lord wishes to return to the question of whether the clause is sufficiently widely drawn, I will be happy to deal with it when we get to that clause. We have debated whether the list of offences is right.

Lord Judd: My Lords, I am sorry to interrupt my noble and learned friend again. I ask him to accept my genuine bewilderment that in his argument he lays great emphasis on the measures that can be taken to prevent publicity. Surely the very fact that the case is there, and the jury has been asked to participate in it, demonstrates that the process has been gone through. Jury members will therefore be influenced greatly by the fact that they know the process must have been followed if they are asked to come and hear the case.

Lord Goldsmith: My Lords, I am by no means sure that that is right. If a defendant wishes it to be known that he has been acquitted before, that can happen. No doubt it will be a matter to be considered by the trial judge, but as regards procedure, I am not sure whether the jury should be presented with the case on the basis that the defendant has been tried before. I can see circumstances in which a defendant would think that that is helpful.

Lord Thomas of Gresford: My Lords, does the noble and learned Lord the Attorney-General accept that in retrials, transcripts of previous evidence are almost invariably used for cross-examination purposes, and the fact that there has been a previous trial is always known?

Lord Goldsmith: My Lords, we do not have a procedure such as that being debated at present. The Court of Appeal will have the important task of deciding whether it is in the interests of justice for the court to make the order. It will have to have regard to whether existing circumstances make a fair trial unlikely, the length of time since the alleged offence was committed, whether it is likely that the new evidence would have been adduced but for a failure of people to act with due diligence, and whether, since then, someone has failed to act with due diligence. We can trust the Court of Appeal to make the right judgment, as we can trust the trial judge to make the right judgment about whether a fair trial will be necessary.
	We are well past injury time, so I shall conclude. The fact that someone has committed a murder and then brags about it in a pub is not just a matter of offence. With respect to the noble Earl, it is not the same as someone bragging that he has enjoyed the company of many women. If there is a retrial, the question for a jury, the Court of Appeal and the DPP will be whether there is new and compelling evidence, which they will have to look at as a whole.
	I return to the point made by my noble friend Lady Gibson. Public confidence in the justice system is diminished if people are able to walk free where there is compelling new evidence that they have committed serious offences. That is not only because it is not right that they should be able to walk free, but also because they may be walking free to offend again.

Baroness Kennedy of The Shaws: My Lords, I shall not detain the House for long. I have not been persuaded by the noble and learned Lord the Attorney-General that this change in the law will bring greater justice. I think that we will see the encouragement of poor investigation; we will see the victimisation of people who have been previously acquitted; and we will see the destruction of the peace of mind that should come with an acquittal. We forget that there are effects on many more people than just the one suspected of being guilty. This is a slippery slope; once it has been done in this area, it will be advanced into other areas. That is the inevitable way of things.
	Something which has not been considered is that this could lead to perverse results. Juries struggling towards a verdict may say, "Actually, you know, if you're worried about this, why don't we just acquit. If they really can go back after more evidence, maybe that is what they will do". We may end up with juries seeing it as a way out and, consequently, there being more acquittals, which would be wrong.
	We must go back to what the noble and learned Lord, Lord Mayhew, said. This clause is about giving more power to the state; in fact, the whole Bill is about giving more power to the state. That is what is so shocking. We seem to be retreating from principles, which are there for good reason. They have been developed through time for reasons which are about justice and about the quality of our lives here in Britain. We are making great mistakes in departing from those principles. It is a matter of constitutional principle, therefore I seek the view of the House.

On Question, Whether the said amendment (No. 143A) shall be agreed to?
	Their Lordships divided: Contents, 22; Not-Contents, 65.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

Tuberculosis in Cattle

Baroness Byford: rose to ask Her Majesty's Government what progress is being made towards the eradication of tuberculosis in cattle.
	My Lords, bovine TB is a serious disease. It is one which I believe is totally out of control. In 1979, there were 72 herds in Great Britain with TB reactors. Yet in 2002, there were 4,047 (4 per cent) under restriction at some time during the year, and there were 3,157 new herd incidents. The GB incidence is increasing at the rate of around 25 per cent year on year.
	In 1992, new confirmed breakouts occurred in West Wales, Gloucestershire, West Wiltshire, Avon, Cornwall and parts of Devon. The rate of new incidence in 1996 was 1 per cent; in 2002, it was 4 per cent. In 2002, there were many more cases in endemic areas, but more worrying was the spread to new areas such as Hereford, Worcester, Shropshire, Staffordshire and into Powys. These appalling figures speak for themselves, which is why I maintain that this crippling disease is out of control.
	From the financial point of view, government figures given to me in response to my Questions for Written Answer are equally stark. Compensation figures in 1998–99 were £3,491,000. In 2000–01, they had risen to £6,632,000. In 2002–03, they had risen to £31,146,000. Including all costs for compensation, TB testing, laboratory support and SVS staff, the figure for 1998–99 was £19,355,000, but by 2002 that had risen to £60,599,000. That is a huge cost to the public purse. Surely these increases cannot be sustained.
	Between 1997 and March 2002, 34,686 cattle had been compulsorily slaughtered. These are stark facts and in no way reflect the stress experienced by the farmers affected. Many of them have said to me that they considered an outbreak of TB within their herd a more devastating experience than having to cope with a foot and mouth outbreak. With foot and mouth, once the disease had been confirmed, all animals were slaughtered. With bovine TB the disease can keep reoccurring and months and years of restriction can follow.
	While farmers receive 100 per cent compensation for the value of the slaughtered cattle, this fails to cover the loss of income associated with a TB breakdown and the subsequent movement restrictions. This may include the loss of milk sales, a halt to trade of live animals, disruption of breeding plans and the loss of genetic lines. The increased cost of housing extra animals or loss of calf values due to the inability to keep or sell them, puts immense stress on a farm's ability to survive financially, whether that farm is large or small.
	Farmers can help themselves by ensuring pre-movement and post-movement testing of cattle to minimise cattle-to-cattle transmission of TB, something which I know the NFU encourages.
	The vast majority of TB outbreaks remain within the TB hotspots. In these areas there is a high level of cattle movement restriction and there is a high frequency of cattle testing to limit animal-to-animal spread. Despite this, breakdowns keep occurring, which underlines the contamination effect of the wildlife source. In all TB hotspots there are reports of a great deal of badger activity.
	It has been claimed by some parties that TB is of little consequence compared to other endemic diseases of cattle. The reality is that TB is a notifiable zoonotic disease of serious consequence. I believe that it is the duty of the Government of the day to have in place suitable containment measures. To work properly, these measures must involve all species that are significant carriers of the disease.
	Perhaps I may ask the Minister some practical questions. First, in the TB hotspots where the testing of cattle regularly takes place or where new outbreaks occur, are TB tests made at the same time on local wildlife outside Krebs trial areas, for example, on badger and on deer? Secondly, are tests on all road casualties of badger and deer within those areas carried out on a routine basis? If not, why not? Would it not be beneficial to test all road casualties wherever they occur so that the infection can be traced in advance of new outbreaks?
	Thirdly, does not the Minister agree that an overall strategy embracing cattle and wildlife risk should be routine? Fourthly, what studies are under way to identify bovine TB in wild and farmed animals, notably deer? An article in the spring edition of Deer Farming makes alarming reading as it suggests strongly that deer, and possibly other wildlife, conceal TB infection and may not be picked up by routine TB tests. What work is being done in this area?
	I also ask the Minister's view of the decision in Scotland to order whole-herd slaughter when TB was recently confirmed. Should that happen in the rest of the UK? I further understand that the VLA is considering new tests that would define whether cattle were reactors or diseased. What progress has been achieved in that respect?
	I understand that the Government are considering using lay TB testers. Is that due to a shortage of veterinarians available to do such work, or the increasing number of cattle awaiting testing? How reliable does the Minister consider the tuberculin skin test to be, and how accurate are its results? I am told that there is a 40 per cent variation rate, which suggests that, at post-mortem, many cattle were not infected.
	From the escalating figures that I cited at the beginning of my speech, your Lordships will realise that I am extremely concerned about the current situation. Action needs to be taken to eradicate TB—and quickly. The implications of failure to do so and the impact that an uncontrolled spread of the disease could have on animal welfare and animal health, on farm livelihoods, on the wider rural economy and, indeed, on the taxpayer, are recognised by all.
	We all want a healthy cattle and wildlife population. However, the current position is unsustainable. If action is not taken now to address the continued spread of bovine TB, many more badgers, as well as cattle, will suffer unnecessarily and the current management of the countryside will eventually be affected. Farmers, too, have their responsibilities. They should automatically test incoming cattle, but it is equally the Government's responsibility to introduce a proper strategy to deal with this devastating disease.
	Finally, I thank all noble Lords who will speak in this short debate. I know that it is a Thursday night and that speaking means them staying on when they would otherwise have been able to get home earlier. I know that one noble Lord has had to change his arrangements to speak in the debate. I am extremely grateful to all the speakers, as I am to the Minister, for participating in the debate. I look forward to hearing their contributions.

Lord Plumb: My Lords, I declare an interest as a livestock farmer with particular concern at the current spread of TB in cattle, which has been fully reported by my noble friend Lady Byford.
	I remind the House that I was heavily involved in the eradication campaign that started in the late 1940s. We celebrated our belief that we had eradicated the disease in the early part of the 1960s. It was then a fine example of complete co-operation between government, farmers and private veterinarians, guided by an excellent veterinary service within the Ministry of Agriculture. It was a success story by any standards. We then moved to the eradication of brucellosis and justifiably claimed that we had the most disease-free cattle in the world. Our exports of breeding cattle were then beginning to increase.
	In her reply, the Minister may claim that dealing with the BSE crisis, foot and mouth disease and many other problems has reduced the resources available to concentrate on TB. We must accept that. But since the 1970s, TB incidence has risen consistently, as my noble friend told us. From the 1990s well into 2000, the rate of increase has accelerated considerably, affecting 2,255 new herds during the past year.
	I accept that some measures have been taken on cattle movements and that trials of the gamma interferon test are well under way, with the aim of reducing the time a herd remains under movement restrictions. But despite these measures, the disease has reached alarming levels. It is causing economic hardship in farming and to the nation. There is also the trauma of losing long-standing breeding stock and the consequences of that financial loss. Live animals cannot be sold and bull calves have to be shot at birth because they cannot be moved. As for the disposal of carcases, of course, today's law terms on farms mean that we cannot bury them. The copious extra paperwork and regulation creates, above all, in farming terms, frustration that farmers are unable fully to rectify the problem themselves.
	Many farmers have gone to great lengths to protect their herds from TB carriers in the wildlife area. They are convinced that the main carrier is the badger. It is becoming more commonly known that TB may also be carried by squirrels. I know of farmers who have put electric fences right around the boundary of their farm and lifted their water tanks so that the cattle can drink but the badgers cannot get to them—anything to keep badgers off their land and away from their cattle.
	One farmer I know well is testing every eight weeks and has been doing so over the past three years. He says that his cows are becoming needle cushions. So to suggest that there is no proof that badgers are the carriers beggars belief. I saw it myself not so terribly long ago in a ministry veterinary laboratory—of 19 badgers, 18 were riddled with TB. One recent test by Defra of 32 badgers found 29 infected. Surely that is sufficient proof of the disease spread over more than a decade.
	The stress on farming family life on many livestock farms has become unbearable in these areas. Doing no more than testing and restricting animals in their movement is, in my opinion, not an option.
	It is sadly ironic that the Government claim to be ambitious in developing an animal health and welfare strategy. We have to get more vets on farms more often—that would obviously be a help. In times of adversity and financial uncertainty, farmers need convincing that that is a cost they can meet.
	On TB eradication a lead for positive action from the Government is, as my noble friend Lady Byford has said, long overdue. I am well aware that Weybridge is working hard on a vaccine, and I realise that this takes time. Perhaps the Minister can tell us more about the work that is taking place there.
	The loss of more than 20,000 breeding cattle through TB each year on top of the foot and mouth disease disaster is a loss the country can ill afford. Surely it is time we concentrated on the source of the problem and applied a bit more sense with science.
	Compensation at 100 per cent for the value of the animal does not cover the consequential loss of income, and it is far from easy to readjust a whole farming system in order to survive. It is estimated that the on-farm cost of TB breakdown could be as much as £36,000, on average, per affected farm. In this situation, does the Minister not accept that the longer the disease is allowed to spread in the badger population, almost totally unchecked, the bigger and more expensive the problem becomes?
	The Krebs report of 1997 concluded that there was compelling evidence that badgers contributed to cattle TB. We are waiting for further results, but it has already been indicated that we will not have those results until 2007 at the earliest. That is totally unacceptable. There is a growing consensus that the problem of infection in badgers and consequently in cattle will not be solved without a vaccine, which requires active research and further advances in molecular biology and immunology. That would reduce the severity of the disease in infected badgers, breaking the chain between badger and cattle.
	The situation is extremely serious. The disease is spreading widely in many parts of this country and in Northern Ireland, where I was yesterday, and where many people were talking about it. That is very worrying, because when it gets into those herds—herds that have been established for many years—I know from experience that it takes a long time to get rid of the problem. Let us get at the source. I hope that we see action sooner rather than later.

Lord Williamson of Horton: My Lords, young men are often very impressed by their very first day at work. I was, many years ago, when I joined the public service and was sent to the milk and dairies division to work on fat files—very fat they were—on health and hygiene in dairy farms under the milk and dairies regulations. Perhaps more drains were trapped, more walls were capable of being cleansed effectively, and I even made a small contribution to the reduction of potential risks to human and animal health.
	One of our signposts was that, by a huge programme of testing and removal of infected animals, we made very good progress in eradicating TB from our dairy herd. We were proud of that. We practically achieved what we set out to do in the 1960s, and in 1979 there were only 72 cases in the whole country. I believe that the official definition of TB-free is less than 0.1 per cent in reactor herds for a period of six years, as is the case today in several European countries. Broadly speaking, we won our battle.
	That is why I do not hesitate to intervene in the debate, to join with farmers, the veterinary services and Defra in an effort to check a situation with regard to TB in cattle that is clearly deteriorating. In addition to our many other veterinary tasks—the preparation of a combined vaccination and slaughter policy against any further outbreak of foot and mouth disease and measures to eradicate BSE once and for all from our herds—we simply must check the spread of bovine TB. Consumers of milk are fully protected by pasteurisation, but there are many reasons why we must not lose the ground that we gained in the 1960s and 1970s, as it is an infectious disease, transmitted from animal to animal and from animal to human being.
	It is only recently that I realised how much the situation had deteriorated. It is sad to record that that is in part another side effect of the foot and mouth disaster, since TB testing was suspended and animals had longer to contract and, perhaps, transmit the disease. It is also at least possible that restocking after foot and mouth may have introduced bovine TB into hitherto TB-free areas such as Cumbria.
	I base my arguments on the figures given by government Ministers in response to recent parliamentary Questions in another place and in this House. In the first six months of the year, there were just over 2,100 bovine TB cases in Great Britain, which is an increase of about 2 per cent over the same period of 2002. I realise that some incidents remain to be confirmed and some are unclassified, pending further tissue culture tests. I also realise that a comparison year to year is not always very meaningful in view of the foot and mouth disruption. However, comparability for me is not the main point—it is the absolute number. We know that there were more than 1,000 incidents. That has been confirmed, although each time we look at the figures they go up a bit more. The absolute number is too high and must be reduced. I note that the NFU figures for the eight months show that 4,559 farms are now under movement restrictions. We are talking about a substantial imposition on the countryside.
	In addition, we have to bear in mind the costs. I do not say that that is always the number one issue when we are trying to check a disease but it is important. Mr Bradshaw, in answer to a Parliamentary Question in another place this month, stated that the cost of bovine TB to the Government in 2002–03 was just under £74 million. I know that that includes the additional cost of the backlog of TB testing—which was £12.4 million, quite a lot—and the badger culling trial. It is none the less a significant drain on the taxpayer and does not include, as was indicated by earlier speakers, the significant cost to individual farmers of bovine TB infection itself, although compensation is paid for slaughtered animals. In particular, there is the disruption caused by the movement restrictions, the stopping of trade in live animals, the disruption of breeding plans and, most of all perhaps, the insecurity caused when results are not available but remain uncertain or unclassified for quite considerable periods of time. It is not a situation that is conducive to good farming. Farmers cannot do what they would want to do.
	What can we do in Parliament to help the Government to reverse the bad situation? First, I think that we have to maximise the information on the sources of bovine TB and on means of cutting off the passage of infection. I make both points because the Krebs report of 1997 concluded, as the noble Lord, Lord Plumb, stated, that there was compelling evidence that the presence of the disease in badgers did contribute to TB in cattle. The current Krebs trials are directed mainly to a different point; namely, whether culling badgers is a cost-effective way of controlling TB in cattle. It seems to me that there are three potential sources of the spread of the disease that we need to tackle. We need to tackle them now, but there is not one formula.
	There is, first of all, transmission by cattle, and in particular the spread of the disease from the hotspots. That is of course partly met by movement restrictions when a reactor is suspected or identified. However, I seriously suggest that dairy farmers should be invited, in their own interests, rigorously to limit cattle movements in and—more particularly—out of the hotspot areas. On 3rd June, a Parliamentary Question in another place gave an analysis by county of the incidence of confirmed bovine TB in England—it did not cover Wales or Scotland—from 1998 to 2002. Of course the spread is dangerous, but it remains true that there is a very heavy concentration in six counties while other areas are totally free. So it is the case that the maximum amount of restriction on cattle movements, even on a voluntary basis, can play a big role.
	Secondly, there is the existence of the infected badgers. Like the National Farmers Union and earlier speakers, I think that there is a serious risk in waiting until 2006 or 2007 for the results of the Krebs trials before we take any action on badgers outside the trial areas. After 2007 we should be in a better position to judge whether we can achieve a fully effective means of greatly reducing or eliminating the disease from the badger population. Meanwhile, however, I think that we should take action to trap reactive badgers and thus reduce the pool of infection. Standing still is not a good idea while the disease continues to spread. Of course, we are not seeking to eliminate British badgers, which despite the dry summer probably still number at least 300,000, but to remove TB infected animals in the limited number of areas where bovine TB has welled up again in the cattle herd.
	At least in my part of England the badger is a very common animal. I can say without exaggeration that I seldom drive across the county of Somerset without seeing a dead badger. It is highly likely that before I return to the House next week I shall have seen yet another dead badger beside the road, either a road casualty or possibly dumped beside the road because it is a convenient way of getting the council to take the corpse away. It is extremely common to see badgers in Somerset at present. They are probably more visible than foxes in my area of Somerset.
	Thirdly, do we have any better information about potential infection from other wildlife, for example, deer? The deer population is about as high as it has ever been since kings went hunting some centuries ago. What is the assessment of risk from that source? I do not know and I should like to hear from the noble Baroness on that point.
	As is the case with other diseases, we come back to the importance of finding a suitable vaccine. The difficulties are extremely great; I do not underrate them. However, some elements of progress have been made. For example, as a result of the success of sequencing, we can now identify the components of M.bovis rapidly and effectively. Perhaps the noble Baroness will tell us what the perspectives are and in particular what efforts are being made in this respect.

Lord Livsey of Talgarth: My Lords, it is a great privilege to speak in this debate, particularly as it comprises such knowledgeable contributors. I congratulate the noble Baroness, Lady Byford, on obtaining the debate. I pay tribute to the knowledge of the noble Lords, Lord Plumb and Lord Williamson, who are very well informed on these subjects, as, indeed, is the noble Baroness, Lady Byford, who covered a tremendous amount of ground in her speech.
	I do not intend to repeat all the statistics that have been mentioned already, but I wish to make four statistical points in looking at the extent of this problem. First, new herd incidences of TB have doubled since 2000. Secondly, twice as many farms have been infected with TB than in the whole of the 2001 foot and mouth outbreak. Thirdly, 3,000 farms in England, Wales and Scotland are overdue on TB tests. Finally, the number of cattle slaughtered because of TB has seen a fourfold increase since 1998. Those figures speak for themselves.
	I want to address the extent of the problem—I have just done so—in the historical context, which was well covered by the noble Lords, Lord Plumb and Lord Williamson, although I wish to make a few more points; the need for a thorough scientific eradication of the disease; the obvious reasons in human health terms for eradicating this disease, whether it is in cattle or wild mammals, and the importance of animal health factors in all of that.
	The human cost of this has been enormous. I am sure that if he could have, the noble Lord, Lord Moran, would have been present tonight. He farms in the constituency that I used to represent, Brecon and Radnor, as does his wife. Lady Moran owned a herd of Welsh Blacks. They lost at least half of that herd about 18 months ago. The impact of that on Lord and Lady Moran was very considerable indeed. The animals were pedigree and I believe that they had 25 years of breeding behind them. That situation has been repeated up and down the country. It is a very bad situation affecting farmers and their families.
	In a historical context, I remember the 1950s in particular, when huge efforts were made to obtain tuberculin-tested dairy herds. As a student at that time, I saw maps of the United Kingdom, divided county by county where TB was being eradicated. There were TB-free areas where the farmers were very proud indeed, because they had eradicated TB from their herds. I well remember going to south-west Scotland with a farmer when I was a student to purchase Ayrshire cattle that were TB-free and TT-tested, because the herds at home were not at the time fully eradicated. An enormous amount of work went on. More than double—probably three times—the number of state vets worked on that eradication scheme at that time. We have done it before, and we can do it again.
	In the longer term, we need to develop a vaccine, and a good and effective one at that. The MAFF strategy originally said that that would take at least between 10 and 15 years. That is a long time, and we are well into that period. If we want to stop what is going on, we need much more effective methods of control than are there at the moment.
	We have heard of the Krebs review, and that it said that badgers were a significant source of TB infection in cattle. We know of the research going on in developing a vaccine and on why the disease spreads from cattle to cattle and, indeed, from cattle to wild mammals and back again. All that is well charted territory. Clearly, the objectives must be in testing and controlling to reduce the risk, control infection and prevent the disease spreading. We have to protect public health. That is extremely important. As I said, we have to introduce new and more effective vaccines.
	The vexed problem at the centre of the issue is the badger trial going on at the moment, which has been severely inhibited by the 2001 outbreak of foot and mouth. We have to ask ourselves whether the killing of badgers is an effective way of controlling TB, and what contribution badgers and other wildlife make to the infection of TB among cattle. I understand that an independent scientific review of randomised badger culling has been set up by Defra. It must not only analyse the results of the trial, but propose alternatives that are much more effective than those presently in place. As we have heard, the situation is extremely urgent.
	We face a number of problems in the human population in the United Kingdom as a whole. I can understand why some say, "Badgers are innocent—OK". I am afraid to say that, in a dyslexic sense, badgers are innocent—KO. That is the knockout blow to effective TB control.
	The problem is political. Ministers have to grasp the nettle, but it is very difficult. When I farmed, I had a badger sett. I would not tell anyone of its existence. In those days, the terrible business of persecuting badgers occurred. I certainly would not let anyone know where the sett was, and I believe that many farmers felt the same way.
	Now, badgers are protected. I state openly that my name was on the face of the badger protection Bill in the House of Commons as I considered it very important that they should be protected. However, as we all know, there has been an explosion in the badger population. In fact, I would say that some badger setts are vastly overcrowded—much the same as in the 19th century when there was a big slum problem and the spread of disease among the human population was enormous.
	I believe that this problem cannot be tackled without a proper scientific approach. It is all very well to test cattle, to slaughter reactors and those affected and to take all the measures that we have heard about in this debate to restrict movements. However, I am afraid that, ultimately, it will have to come down to testing all badgers, sett by sett. Indeed, we may have to immobilise badgers, but not destroy or cull them unless it is proved that they have TB. That is particularly important in the TB hotspots throughout the United Kingdom.
	We all love badgers. When we see them in the countryside, it is a delight. But no one really has the courage to address the important problem of an effective cull of the badger population based on reactors. I believe that that is far too hot a political potato for Ministers due to what I would describe as the Beatrix Potter factor. As children, everyone read about the delightful life of badgers and all kinds of animals. Indeed, particularly in urban areas, face-to-face experience of animals is coloured in a rather rose-tinted way and there is a somewhat skewed view of what goes on in the countryside.
	It is very important to have a healthy badger population in the same way as it is important to have a healthy cattle population. Some would say that the latter is more important because our cattle supply milk for the human population. None the less, I am afraid that both types of animal, and indeed others which have TB, need to be weeded out. The presence of sick animals should not be allowed, and it is better to weed out the sick rather than the healthy ones. But, according to the Krebs research, both types are being culled at present because information is not available to find out which ones are sick before culling occurs.
	It is my belief that there is a solution to this problem. In the absence of an effective vaccine, we must take action now. There must be a more focused and targeted approach to wild animals which are diagnosed positive as a result of TB testing. I believe that that would improve animal welfare for the badgers and other wildlife and provide a far more acceptable solution. The aim must surely be for badgers and cattle to be treated equally in this respect to ensure that we have a healthy cattle population and a healthy wildlife presence in the countryside. That should not be impossible. It is a challenge, but one that we can achieve.

The Duke of Montrose: My Lords, once again, in this Chamber we are lifting the lid on a cauldron of worries that seem to dog the farming and livestock industry. First, I thank my noble friend Lady Byford for bringing this matter before your Lordships' House—it is so important. I declare my interest as a member of the National Farmers Union in Scotland and a livestock farmer. I would not like to count the days that I have spent—sometimes in sleet and rain—assisting the vet in TB and other tests on cattle.
	In spite of the experience that the world has had with HIV and AIDS, when the public perceive a problem they expect science to have the answer. That gives rise to an unfortunate perception regarding animal diseases, because in spite of immense strides made in the past 50 years there are areas where science is still struggling to catch up. Historically in those cases farming and farmers were left to come up with their own pragmatic solutions. Now that all levels of production and activity are being brought under regulation, wherever a problem arises farming operations are more or less asked to stand on hold in the hope that science will catch up with the problem.
	We owe a debt of gratitude to the veterinary profession That was well illustrated by the noble Lord, Lord Williamson of Horton. However, nothing is ever on hold with livestock. Each day when a farmer steps out of his door he faces a new combination of issues. When an outbreak of TB is identified, all movement of livestock other than for slaughter is banned. That the present outbreak of TB has mostly been found in cattle in the main dairy areas is only a moderate comfort. At least while the difficulty is being sorted out the farmer has something to sell, even though in the current climate that might not be sufficient to offer a profit. For a farm where the only product is store livestock there is no income for the duration. My noble friend Lord Plumb illustrated well the figures that are involved in farms that are found to be infected.
	Everyone who has spoken has emphasised the rapid deterioration that has occurred. In the statistics that I have seen the cost of the outbreak last year is three times the cost in 1999, which my noble friend Lady Byford pointed out was a vast increase on the previous situation. We all know how the restrictions during the foot and mouth outbreak caused disruption to animal health work. That has been referred to. In addition, when farmers have had to move into the restocking phase, the fact that such a large number of stock were slaughtered has meant that they have often had to look beyond their normal trading circles, so have left themselves open to the danger that they may be bringing in diseases to which they are not accustomed. There is now the possibility of TB. My noble friend Lady Byford has issued quite a challenge to the farming industry with the thought that all cattle would have to be tested when they are brought on to the holding.
	My noble friend Lord Plumb talked about the proposed gamma interferon test. Will the Minister indicate whether there has been an increase in the accuracy of the current tests? Are the Government satisfied with them? In Scotland we have been extremely fortunate. Until last week we had not had an outbreak of this disease since 1996. The report that I received last week was that there has just been an outbreak in which 296 cattle have been taken for slaughter in Lanarkshire. The actual number of cases of infection would be useful to know, but I cannot supply that information. Given that in some areas such as that it has not been felt necessary to test any more frequently than every four years, it is easy to see how a large concentration could build up before any action was taken. Are the Government considering stepping up the frequency of testing across the country? What is their view of the resources within the veterinary profession to consider such an increase, when it is having difficulty in completing the tests that are required under their present policy?
	That leads to another issue that has been covered in detail tonight—the danger to wildlife, particularly deer and badgers, in unaffected areas of the country if there is a build up of disease in domestic animals. This type of disease in wildlife is bound to cause them to suffer, but presents an even greater conundrum of how a cure for them can be found. I scratch my head with the thought of testing badgers, because as far as I am aware when one skin tests an animal one needs four days before one returns to assess the reaction to the skin test. That might mean that badgers would need to be electronically chipped in order to know which ones had a reading the first time round. The only other thing that could be done is for the badgers to be caught and killed immediately.
	My noble friend Lady Byford, and the noble Lord, Lord Williamson of Horton, spoke of how deer can be infected with bovine TB and so, presumably, act as carriers. As was asked earlier, one would like to know what is the danger of cross-infection to cattle. It may not be as great as with badgers, which have been found to circulate quite readily in livestock buildings. My noble friend asked the Minister to tell the House whether a watch is being kept in this area. Presumably a monitoring system similar to that for cattle has been followed for farmed deer. Can the Minister say whether there is any monitoring of wild deer? In all these issues the message has to be that a sense of urgency must be maintained and farmers would like to be reassured that that is the case.

Baroness Farrington of Ribbleton: My Lords, I begin by thanking the noble Baroness, Lady Byford, for raising this issue. As all noble Lords who have spoken have said, this is an extremely important, serious issue, and it is good to have the opportunity to debate it. Noble Lords are extremely knowledgeable. The questions have been wide ranging. If I fail to answer any question raised, I shall write to all noble Lords who have taken part in the debate.
	As a Government, we have a wide-ranging programme in place to tackle the complex problem of bovine TB in cattle. The five point plan, established in 1997, led to us spending last year nearly £74 million and extends far beyond the TB testing programme.
	The current five point plan consists of protecting public health; research into how the disease is spread; testing and controls; vaccine-related research; and the randomised badger culling trial. A review of the TB strategy for Great Britain was announced on 18th February. Pre-consultation with stakeholders took place over the summer and public consultation is expected later this year. The outline animal health and welfare strategy launched on 15th July will form a sub-strategy of the animal health and welfare strategy.
	Officials are currently working on a range of short-term cattle-based policy options and the intention is that the proposals will be subject to full consultation later this year. The consultation will benefit from the wide range of knowledge that has been expressed here tonight.
	The noble Lord, Lord Livsey, among others, raised the issue of human health. Pasteurisation of milk, alongside the ongoing cattle testing programme, inspection at slaughterhouses and informing local health authorities of TB outbreaks have succeeded in minimising the public health risk. But we are not becoming complacent. We hold regular meetings with both the Department of Health and the Food Standards Agency in order to keep the threat to public health under review.
	With regard to the progress made towards the eradication of disease in cattle, an issue raised by several noble Lords in their contributions tonight, provisional figures for 2002 suggest that of the 99,000 cattle herds registered in Great Britain, fewer than 5 per cent were subject to movement restrictions during last year. As noble Lords indicated, the percentage of herds affected is much higher than the national average in areas of high prevalence such as South West England and Wales. In Cornwall, some 15 per cent of cattle herds were affected; in Gloucestershire it was 25 per cent.
	Noble Lords raised the issue of data and comparison. Unfortunately, data for both 2002 and 2001 cannot be easily compared to earlier years. In 2001, TB testing was largely suspended, as recognised by the noble Lord, Lord Plumb, during the foot and mouth disease outbreak; and in 2002 much of the testing was aimed at high-risk herds and those with overdue tests. Early indications suggest that the reduced levels of testing in 2001 have not substantially altered the underlying historical trend of confirmed TB incidents, which, as noble Lords recognise, is serious and the trend is towards a yearly average rate of about 20 per cent.
	In line with European law, cattle are tested regularly using the tuberculin test. Those animals that react to the test are removed from the herd and slaughtered. Frequency of testing depends upon local circumstances. It will be obvious to noble Lords that herds in areas such as the south west of England, where the infection rate is high, are subject to yearly testing. Herds that disclose reactors to the test are subject to movement restrictions, to reduce the risk of spreading the disease to other herds.
	The noble Lords, Lord Williamson and Lord Livsey, and the noble Duke, the Duke of Montrose, raised the issue of the backlog. The suspension of the testing during the foot and mouth disease outbreak led to a backlog of more than 27,000 overdue tests by the end of 2001. I am pleased to say that, thanks to a major effort by farmers, local veterinary surgeons and the State Veterinary Service, the backlog has now been reduced below the level that existed prior to the foot and mouth outbreak. Last year, nearly 44,000 herd tests were carried out involving more than 4 million animals.
	Any overdue test represents a disease risk. For that reason, from 1st October all herds with a TB test overdue by more than three months have been and will be placed under movement restrictions by the State Veterinary Service. Currently, all cattle removed and compulsorily slaughtered by the State Veterinary Service under TB control measures are compensated at full market value. Last year more than 22,000 animals were slaughtered. Compensation paid to farmers in the last financial year was more than £31 million. The Government have come under criticism, as noble Lords have recognised, regarding the level of individual valuations. It is our duty to find a balance between the responsibility of farmers to ensure high standards of animal health and welfare and the burden to the taxpayer.
	With that in mind, consultation began last Monday on proposals to rationalise existing compensation arrangements by creating a single approach for all notifiable animal diseases. I am sure that noble Lords will wish to encourage people to respond to that consultation.
	In autumn 2002, in response to urgent requests from the farming industry, we announced a package of measures to alleviate the hardship caused by the imposition of movement restrictions on cattle herds. This allowed for the movement of cattle on and off restricted premises under certain circumstances, subject to local veterinary disease risk assessment. Our overriding priority must remain the control of the disease.
	As part of the same autumn package, we announced the field evaluation of the gamma-interferon test, which was officially recognised by the EU in July 2002 as a supplement to the tuberculin test in affected herds. The test offers the potential to detect disease earlier, and thus reduce the time that an infected herd remains under TB movement restrictions. However, the test is less specific, meaning that it results in a higher possibility of false positives. Results from the field trial will inform future decisions about the use of the gamma interferon test as part of the cattle testing programme.
	In response to the noble Baroness, Lady Byford, in particular, an important part of our control and research programme is the development of an effective vaccine against the disease. However, there are still many obstacles to be overcome, including the administrative and legal approval processes involved.
	Last year, Defra announced the sequencing of the Mycobacterium bovis genome, and it is hoped that that work will pave the way for the development of a vaccine. The Vaccine Scoping Study Sub-Committee set up by the Independent Scientific Group for Cattle TB has recently reported to Ministers on the feasibility of pursuing a vaccination strategy for either cattle or wildlife, and advice on future research requirements. I must caution that the identification and delivery of an effective vaccine against bovine TB for either cattle or wildlife remains a long-term goal.
	Noble Lords, including the noble Lords, Lord Plumb and Lord Livsey, mentioned the badger-culling trial. It was designed and is overseen by the Independent Scientific Group on Cattle TB. It is intended to establish whether culling badgers is an effective or sustainable bovine TB control mechanism by comparing two culling treatments with control areas. It will also provide a wide range of epidemiological data on the disease. The group anticipates that a full set of trial data should have been gathered by the end of 2006. It will be possible to report after that. I shall return to that point in a moment.
	Outside the trial areas, all badger culling is suspended. I understand the frustration of farmers and all noble Lords, particularly the noble Baroness, Lady Byford, and the noble Lord, Lord Livsey, who have spoken today, calling for culling to take place in certain hotspot areas. Some farmers have suffered repeated TB breakdowns on their farms. However, I think noble Lords recognise the importance of proceeding on the basis of sound evidence and science.
	Vaccine-related research and the badger culling trial are only part of our research programme. Based on advice from the Independent Scientific Group on Cattle TB, we are committed to spend over £15 million this financial year on a wide-ranging research programme. We are funding projects that look at, among other factors, the pathogenesis of the disease, risk factors in cattle herd breakdowns and the risks to cattle from wildlife.
	Alongside our own research programme, research is ongoing in other countries, such as New Zealand, the Republic of Ireland and France. Officials remain in regular contact with their counterparts abroad. We will use the results that become available, from whatever source, to inform our future policy.
	In response to the noble Baroness, Lady Byford, and the noble Lord, Lord Plumb, it is normal practice within Defra to review policies about every five years. Ministers of all three rural affairs departments in Great Britain have agreed the need for a TB strategy review. In February, therefore, the Secretary of State for Environment, Food and Rural Affairs announced a review of the TB strategy for Great Britain. That will take into account the recommendations of the Environment, Food and Rural Affairs Committee report into badgers and bovine TB, as well as applying the principles set out in the outline Animal Health and Welfare Strategy. A series of pre-consultation meetings with stakeholders took place over the summer and public consultation is expected around the end of the year.
	Noble Lords also raised the issue of short-term cattle-based policy options, such as pre-movement testing, improvements to the delivery of the TB control programme and a review of testing frequencies. Those proposals are intended to restrict the geographic spread of the disease and will also be subject to full consultation later this year.
	Our best hope of achieving control and eventual eradication of this complex disease lies in the results of the research programme. The debate is extremely timely; those who read it will find it very informative. I urge everyone who has taken part, and those who read the debate, to take the opportunity to respond to the consultation on the TB strategy and the short-term policy measures.
	I thank again everyone who has spoken. There are many points that I have been able to cover; in the last 30 seconds I shall try to cover some more and then I will write. The noble Baroness, Lady Byford, raised the issue of whole-herd slaughter in Scotland. If a herd in England or Wales is severely affected whole-herd slaughter will be considered. The unusual point about the Scottish case is that it occurred north of the Border, where incidence is low.
	Questions were raised by the noble Lord, Lord Livsey, about the timing of vaccine work. Research is on target. In the first five years, we found some new candidate vaccines, which were tested experimentally in laboratory animals and host species. The ISG's sub-group is looking at the feasibility of vaccination. The report will be published. TB vaccination is complex. Research on different vaccines is being considered.
	The noble Baroness, Lady Byford, raised the issue of lay testers. They are approved to carry out the skin test and would permit additional flexibility in testing, but it is not intended that veterinary practices will be compelled to employ lay testers.
	I am conscious that noble Lords—because of their knowledge—have raised a great many issues. As regards the Hansard writers, I am conscious that I have had to speed read, which is not fair to them. Perhaps I may thank the noble Baroness for raising this issue. I promise to try to cover all the points in correspondence.

Mersey Tunnels Bill

Bill brought from the Commons yesterday, read a first time and referred to the Examiners.
	House adjourned at two minutes before nine o'clock.